Employment lawRuth Rotich & Company AdvocatesLITIGATION OR ARBITRATION IN EMPLOYMENT CASES? AVENUES OF DISPUTE RESOLUTION

INTRODUCTION
In a recent case Okeyo v Board of Directors HHI Management Service Limited & another, a ruling was delivered on 6/05/24, the Honorable court rendered itself that arbitral clauses in employment contract was atypical and underlined the reality of the unequal bargaining power between the employer and the employee. Such clauses were imposed on employees by employers. Reference of an employment dispute to arbitration was not more favourable than litigation which was an integral part of the Employment Act.

BRIEF FACTS
HHI MANAGEMENT SERVICE LIMITED made an application seeking that the claim filed in court against it be stayed and the case be settled out of court through arbitration in accordance with the employment contract signed by Okeyo and itself.

HHI MANAGEMENT SERVICE LIMITED relied on section 6(1) of the Arbitration Act, 1995 that referred any dispute between them and Okeyo to arbitration as the court was never part of drafting the employment contract.

ORDERS
The court made the following orders:-

 The Employment and Labour Relations Court is mandated under the Constitution to to hear and determine       disputes relating to employment and Labour relations in the first instance unless parties make an application to     stay proceedings and proceed with arbitration.

The arbitral clauses was designed to solve commercial disputes. Employers have an upper and in drafting     employment contracts. The employees do not have time to read through all the complex terms of the contact. Therefore the protection of the courts when dealing with employment matters.

The Employment Act, 2007 prescribed the minimum conditions of employment and the latter part addressed    termination and dismissal. Under section 26 of the Employment Act, 2007, the minimum conditions of employment  applied in all cases where the terms and conditions of employment agreed upon by the parties or prescribed by  regulations or other written law or collective agreement or decreed by the court were less favourable. Arbitration  was found not to be more favorable than litigation.

The claimant was apprehensive that the arbitral process was expensive hence parties had to share costs. At most  times, the Claimant was not able to afford fees for the sole administrator. This results to an unfair arbitration process.

CONCLUSION
The Application dismissed for lack of merit.

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