A Critique of Arbitration Clauses/agreement in Employment Contracts

Abstract

Whenever parties are involved in a contract of employment, conflicts are bound to occur. Arbitration clauses have therefore been applied to assist parties in a contract of employment, reach an amicable solution to their disputes. Arbitration arises out of an arbitration clause. Application of arbitration clauses in contracts of employment is gainin.g traction in Kenya. Usually, Courts have no jurisdiction where such jurisdiction are excluded by the Arbitration agreement. Other Courts have also postulated that Arbitration is not applicable in a contract of employment. The conflict involving application of arbitration clause in contracts of employment has therefore received conflicting interpretations from our Courts. The net effect of this matter is confusion in our Courts, despite the principle of stare decis. Article 162(2) (a) of the Constitution of Kenya gives the exclusive jurisdiction of employment disputes to the Employment and Labour Relations Courts (ELRC). The ELRC Act establishes the ELRC pursuant to Article 162(2) of the Constitution of Kenya 2010. The ELRC is clothed with exclusive jurisdiction, both appellate and original, to preside over all disputes brought to its attention in accordance with Article 162(2) of the Constitution and in so far as the disputes relate to employment and labour relations.' Section 75 of the Labor Relations Act (LRA) expressly negates arbitration in employment disputes. A research into this conflict would bring a major conclusion into this grey area and ensure uniformity and clarity in Court decisions in relation to dealing with arbitration agreements in contracts of employment and also encourage future research in this area. The research will therefore inform legislative, judicial, and administrative and policy decisions in reforming and clarifying the application of arbitration in contracts of employment.