An Overview of The Employment and Labour Relations Court (Procedure) Rules, 2016.
Hamilton Harrison & Mathews Press
“All the rules of procedure are handmaids of justice. The language employed by the draftsmen of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice”
These are the words of Dr. Arijit Pasayat and Mukundakam Sharma, Judges of the Supreme Court of India, in Civil Appeal No. 6731 of 2008 – Sambhaji & Others v Gangabai & Others, allowing an appeal against a decision of the superior court declining to grant a defendant leave to file their defence out of time. They are words that will resonate with many who have found themselves on the wrong side of a deadline and as a result, facing unpalatable consequences in a court process.
In dispensing justice, courts and tribunals develop rules of procedure to regulate the conduct of matters before them. Such rules, to paraphrase the words of Lord Esher MR in his dictum in Coles v Ravensear (1907) 1 KB 1, are intended to be handmaidens of justice. The primary objective of rules of procedure therefore should be for the furtherance of justice and not to frustrate it.
It is certainly with a view to setting out clear guidelines for the conduct of matters before the Employment and Labour Relations Court (hereafter referred to as the Court), that the Employment and Labour Relations Court (Procedure) Rules, 2016, which came into operation on 5th August 2016 were prescribed. The Rules which are subsidiary legislation to the Employment and Labour Relations Court Act, were published in the Kenya Gazette supplement Number 129 through Legal Notice Number 146 of 2016.
The Rules replace the Industrial Court (Procedure) Rules of 2010 which were subsidiary legislation to the Labour Institutions Act Number 12 of 2007. It may be recalled that following the repeal of the Trade Disputes Act in 2007, the Industrial Court as it then was, was established under the Labour Institutions Act.
The Employment and Labour Relations Court as we know it today was established by the Industrial Court Act Number 20 of 2011 (later renamed, the Employment and Labour Relations Act). This Act came into force on 30th August 2011 about a year after the promulgation of the Constitution in 2010. Pending the establishment of the Court as described in the Constitution, labour disputes continued to be heard by the Industrial Court whose composition and jurisdiction was very different from that envisaged by Article 162 (2) of the Constitution. For example the Court was constituted by a judge and two members who were representatives of COTU and the Federation of Kenya employers and delivered awards instead of judgments. It was also not a court of record.
In the absence of rules of procedure for the Court as established in 2011, the Industrial Court (Procedure) Rules of 2010 continued to apply to proceedings before that Court.
Over time, it became apparent that those rules did not fully address the scope of the Court’s jurisdiction as expanded by the Constitution. There was for instance, uncertainty as to whether Constitutional Petitions could be filed in the Court and whether in fact the Court had jurisdiction to entertain matters asserting a violation of fundamental rights and freedoms.
While the rules to a large extent replicate the now revoked Industrial Court (Procedure) Rules of 2010, they also contain further provisions which seek to bring certainty and uniformity in the procedure for the conduct of matters before the Court. This includes setting out the process for instituting claims, petitions or appeals, the particulars to be contained in the pleadings, the filing of applications, the procedure for the conduct of matters, the enforcement of decrees and the registration of collective bargaining agreements among other processes.
We have outlined below some of the salient provisions of the rules.
Rule 2 sets out the interpretation of some of the words used in the Rules including the Central Planning Monitoring Unit and what an economic dispute is. The definition of a suit before the Court now includes a claim, petition; application for judicial review, appeal or any proceedings before the Court for determination. Under the revoked rules, a suit before the Court was restricted to a claim, an appeal or any proceedings before the Court. This rule clarifies the scope of the Court’s jurisdiction as provided under section 12 of the Employment and Labour Relations Act.
Rule 3 provides that the Court may sit in any station established by the Chief Justice. Under the previous rules, the Court could sit in any division of the Court as established by the Principal Judge under section 16 of the Labour Institutions Act. The Court is now a special court with the same status as the High Court and cannot therefore sit as a division of the latter.
Rules 4 to 8 of the Rules provide for the institution of proceedings including appeals to the Court. Rule 4 sets out what must be contained in a statement of claim. A party is now required to file the documents it intends to rely on, when filing the Statement of Claim. The statement must also be accompanied by an affidavit verifying the facts to be relied upon.
Rule 5 (1) (b), (2) and (3) make specific reference to the filing of labour disputes referred to the Court in accordance with the Labour Relations Act. It sets out additional requirement and the filing of specific documents in such matters. It is arguable whether these provisions exceed the scope of statute and what effect they have to the underlying basis for conciliation.
Under rule 7, a party wishing to institute a petition is required to do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012. A party wishing to institute judicial review proceedings must do so in accordance with section 8 and 9 of the Law Reform Act and Order 53. This rule does not however preclude a party from seeking the enforcement of any constitutional rights and freedoms or any constitutional provision in a statement of claim or other suit filed before the Court.
Rule 8 prescribes the manner in which appeals are to be filed with the Court.
Rule 9 allows for the institution of a suit by one party on behalf of other parties with a similar cause of action. Where such proceedings are instituted by one person, that person must in addition to the statement of claim, file a letter of authority signed by all parties. The Court may in appropriate circumstances dispense with this requirement.
Under rule 13 of the Rules, a party served with a statement of claim and who intends to respond is required to enter appearance and file and serve a response to the suit within 21 days from the date of service. Previously the summons issued by the Court called upon a respondent to file a response within 14 days of the date of the summons. The rule also sets out what must be contained in the response.
In this Court, a party is allowed through pleadings, to raise any point of law or quote any provision, statement or principle of law. Pleadings in this Court may also contain evidence.
Each party is required to file a list of the witnesses it proposes to call in support of its submissions as well as file witness statements. The list and statements are to be file when submitting the statement of claim or statement of response. The Respondent is again at some disadvantage as to the time within which it is required to file these documents as it must do so within the 21 day period provided by the Rules.
Rule 15 of the Rules provides for a scheduling conference. The Rules have adopted pre-trial procedures similar to those set out in the Civil Procedure rules of the High Court.
The Court now has power to direct that a matter proceeds to formal proof where no defence or response is filed in Court within the prescribed time. Formal proof is a proceeding where the Respondent is precluded from adducing evidence in response to the claim by reason of having failed to file its statement of response in time or at all. Respondents will need to be very alert as to the timeline for filing a response, and where necessary to make a timely application to enlarge time, to avoid falling foul of this rule.
Rules 16 provides for the dismissal of suits in certain circumstances such as non- prosecution or non-compliance with any directions given at the scheduling conference.
Interlocutory applications and temporary injunctions
Under rule 17(3), the Court may for good cause hear an application ex-parte ( in the absence of the other party) and make an order upon terms as to costs and subject to such undertaking, if any as the Court considers just. The rules also provides for the time frames for any orders granted and when they can be extended.
A party who is dissatisfied with an order for injunction can apply to the Court to have it discharged, varied or set aside.
Under sub-rule 10, the Court cannot grant an ex-parte order that reinstates into employment an employee whose services have been terminated.
Under rule 18, the Court may of its own motion and where it considers it fit, serve or order service of a pleading on any party whom it is satisfied may be interested in the matter being considered.
Rule 19 of the Rules mandates the Court to encourage parties to proceedings before it to enter into alternative dispute resolution procedures.
Rule 21 of the Rules allows for the determination of a case on the basis of pleadings, affidavits, documents filed and submissions made by the parties.
Rule 23 empowers the Court to consolidate suits if it appears that in any number of suits some common question of fact or law arises; or it is practical and appropriate to proceed with the issues raised in the suits simultaneously.
Rule 24 deals with test suits and allows the Court to make an order that one of the suits be tried as a test case and staying all the steps in the other suits until the selected case is determined or fails to be a real trial of the issues.
Rule 25 provides for the various methods by which evidence may be taken during the hearing of a matter before it. It allows for the use of electronic modes of presentation and recording of evidence and permits the Court to be provided with visual demonstration facilities for the display of such material as maps, photographs, charts and diagrams.
The provisions relating to the delivery of judgment, the preparation of decree, the enforcement of the Court’s orders and decree remain unchanged.
Rule 36 provides for the process by which collective bargaining agreement to be filed and the procedure where there is objection to the registration of a collective agreement. A collective agreement does not take effect until it has been registered by the Court.
Under rule 37, the Court may order the Central Panning and Monitoring Unit to file a report in Court within thirty (30) days of service of the pleadings in any suit in any economic dispute involving a collective bargaining agreement or any other issue where the Court considers it fit.
In any dispute involving state or public officers, the Salaries and Remuneration Commission is required to file a report in Court within thirty (30) days of service of the pleadings in any suit or such other time as the Court considers necessary.
This article provides a general overview of the Rules and is not an exhaustive guideline. Each case will have to be considered on its facts and the appropriate procedures adopted.
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Hamilton Harrison & Mathews Press
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