INTRODUCTION
D. Attending the Court Hearing
III. ISSUES IN DISPUTE RESOLUTION
In both countries the parties are encouraged to attempt to settle the dispute at the lowest possible level through the mechanism established by their contract. It is only in the absence of success that they are officially required to turn the problem over to the government which will then attempt to effect a settlement.
Only in those areas where the parties have been unsuccessful does the Industrial Court serve as the final arbiter. The labor legislation in Kenya, for example, obliges the court to ignore any trade dispute unless the court has received a signed certificate from the labor commissioner stating that the minister has accepted the report of the trade dispute and that all existing mechanisms for dispute resolution have been explored and exhausted. Only then can the issue come to court.
The Trade Disputes Act of 1965 was amended in 1971. The major change was that the definition of ‘‘trade dispute’’ was expanded to cover disputes relating to the dismissal or suspension of employees and the allocation of work as well as recognition agreements. This extension to the grievances of individual employ- ees was a significant one. Prior to this change it would only be large groups of employees or major issues of contract interpretation that would come to the courts.
As in the United States there is a certain degree of rigidity and intransigence by the parties in the framing of the issues:
The parties are rigid on the technicalities of the dispute and they labour under the supposition that if they give in to the other party’s version of the issue in dispute, then they will be at a disadvantage during the hearing. They want to maintain their legal and technical positions. In these circumstances, the court has encouraged the parties to put their respective versions on the issue in dispute in Form ‘A’ so that the court would have clearly before it what their respective position on the dispute is. In both examples cited above, the court accepted the Notification of Dispute Form ‘A’ with both parties’
respective versions included and proceeded to hear the dispute and make an award (Cockar 1981:40).
The judge in this case has taken on the highly diplomatic and effective method used by arbitrators in the United States. Rather than becoming stymied on the question of stipulation, he proceeds directly to the issue at hand.
One of the more complex issues facing the court is that of resolving wage issues. As Justice Higgins in the Australian Commonwealth Court noted:
The living wage represents the normal needs of the average employee re- garded as a human being living in a civilized community. . . . Treating mar- riage as the usual fate of adult men, a wage which does not allow of matrimo- nial condition and the maintenance of about five persons in a home would not be treated as a living wage (Cockar 1981:70).
According to the economists and union officials with whom I spoke, the principal economic criteria that are used include (1) the basic needs of the workers or the family budget (the basket of goods); (2) movements in the cost of living;
(3) wage comparisons, i.e., wages paid in other industries and places; and (4) money, i.e., the financial position of the employer, the ability or inability to pay.
Arbitrators in the United States claim to be less concerned with the ability to pay. Some will say that it is their intention to resolve the conflict rather than to explicitly deal with ability to pay.
Within the developing countries there are problems of income inequality between the urban and rural areas. The government’s position is that pay in- creases, especially in the public sector, can only be given in accordance with the company’s ability to propose cost-saving economics. This is frequently easier said than done. One of the intermediary groups in Kenya that plays an important role in wage deliberations is the Wage Advisory Board and Wage Council. These bodies are involved with the regulation of remuneration and conditions of em- ployment. The Wage Council prescribes a basic minimum consolidated wage for the various job classifications in the industry they are intending to cover. Housing allowance, hours of work, overtime, holidays with pay, annual leave, sick leave, meals and accommodations allowances, redundancy, acting allowance (pay change for temporary assignment), termination of employment, casual labor, and working system are some of the other areas where minimum standards are pre- scribed.
The leader of the Domestic Worker’s Union made an appealing case for the plight of some of the workers he represented. He indicated that at the major hotels the workers cannot use the facilities even on their off hours. In forthcoming negotiations he was going to attempt to get the hotels to support some nearby small native restaurants to which employees could go during their breaks or their days off. He further said that many of the Kenya workers have never been to the game reserves because they are so expensive. This seemed to him a particularly bitter deprivation for those in a country renowned for its wildlife. Consistent with this observation was his plan to establish a budget level resort for the workers which would permit them to enjoy the beasts of the wild. He said he had seen similar such projects in Czechoslovakia.
The union representative of the local government workers noted that the
Minister of Labor sits in on the negotiations of local government workers to determine that there are sufficient funds to meet the salary demands. In instances where the employer refuses to implement what has been promised, the Industrial Court will hear the justification. Sometimes the financial standing of the parties may have altered substantially from the time the contract was initially made. The position of the government is to see that the agreement is implemented as soon as it is signed so that there may be productivity resulting from salary incentives.
Sometimes the Industrial Court makes awards that are unsatisfying to the parties. Because the Industrial Court has the ultimate and final authority, it is obliged to consider the overall economy rather than that of a particular industry.
In developing countries it is sometimes difficult to have increases if the popula- tion vastly outstrips the performance of the economy.
When a worker is dismissed without any fault on his part then the poor worker and his children and wife have been condemned to death, slow death, starvation death. If a worker is doing his job nicely, not very good, but nicely, reasonably well and he is alright, he is not dishonest, he has not committed any gross misconduct then through the Industrial Court we have granted them security of employment (Cockar 1985).
This view seems at variance with the activities in the United States. Perhaps because there are more vocational alternatives, discharge is not seen as being quite as perilous.
As to layoffs, the union leadership is to be advised in advance of future redundancies and discharges. In the case of Kenya Petroleum Oil Workers and Kenya Shell, the company maintained that layoff was not subject to negotiation because of its right to organize business as it saw fit. While the court found strong basis for the argument, it ruled that giving the union notice of the proposed layoff was not equivalent to compelling the employer to surrender management rights.
In instances where discharge does occur, the Industrial Court is most likely to reinstate an employee or award heavy compensation for wrongful dismissal if the employer has denied the employee an appropriate opportunity to defend himself. In cases of reinstatement all files relating to termination are removed from the employee’s dossier. Sometimes in reinstatement, if no alternative posi- tion is found, the award may be as much as 12 months’ salary. The more common remedy is three months’ salary in lieu of notice after it has been proved that the employee was discharged for just cause and was given due process.
When layoffs occur an investigation takes place to determine the contribut- ing factors. Employees are interviewed and company records are examined. The investigator’s report is provided to the union and the employer, and both sides can challenge the analysis on the basis of error or bias.
In summary, barring serious misconduct which could result in a worker’s summary dismissal, management is obliged to give the employee a chance to
improve by issuing a warning letter. The procedure has developed over the years that requires two or three warning letters before the employer can take steps to terminate his services.