The Employment and Labour Relations Court derives its jurisdiction from the Constitution and the provisions of the Employment and Labour Relations Court Act, which gives the Court exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the constitution or any other written law which extends jurisdiction to the Employment Court relating to employment and labour relations and including disputes relating to or arising out of: –
- employment between an employer and an employee;
- trade unions and their members, employer organizations, federations, disputes concerning the registration and election of trade union officials; and
- disputes relating to the registration and enforcement of collective agreements.
The Court also has jurisdiction to hear and determine appeals arising from: –
- decisions of the Registrar of Trade Unions; and
- decisions of any other local tribunal or commission as may be prescribed under any written law.
The exclusive jurisdiction given to the Employment Courts with regards to all matters relating to Employment and Labour Relations disputes includes the power of the court to interpret the constitution and enforce fundamental rights and freedoms in disputes arising in the context of employment and labour relations.
Geographical Jurisdiction
Globalization allows for the operation of foreign and multinational companies, and with that the issue of multiple jurisdiction results.
In finding whether the Kenyan Employment and Labour Relations Court is the proper forum to redress employment issues in cases that involve multinational and foreign companies, the Court in Kenya has held that certain connecting factors may preponderantly favour the Kenyan Courts as the proper place for trial.
Therefore, the court employs prescriptive jurisdiction in favour of corporate separation, especially where there are sufficient factors connecting the parties to Kenya. The interest of the parties is best served by the Kenyan Jurisdiction, an example being where the principal witnesses who give evidence are resident in Kenya.
Temporal Jurisdiction/Limitation of Time
The Employment Act[1] places a statute limitation of three years from the time a course of action arises, within which a litigant can bring the matter before the court. The time can only be extended for 12 more months where there is a continuing injury or damage, after the lapse of the years. The section is coached in a mandatory term, meaning that the court may not have the jurisdiction to extend the period for bringing an action where the same has lapsed.
[1] Section 90