Disciplinary Process in Kenya 

The following list provides examples of offenses which normally warrant disciplinary action: 

• Absence from duty without permission 
• Unwillingness and inability to perform prescribed duties. 
• Damage to Company property 
• Loss of Company property 
• Unauthorized possession / removal of Company property 
• Insubordination 
• Use of abusive language, harassment, discrimination or bullying. 
• Gross negligence 
• Willful damage to or theft of company property 
• Fraud or dishonesty in dealing with the company 
• Theft or misappropriation of Company funds 
• Carrying or being under the influence of drugs or alcohol whilst on company premises or on company business 
• Noncompliance to standard operating procedure 

Once a disciplinary matter has been reported the following steps are to be followed. 

Stage 1 – Informal action 

Informal action is appropriate in cases of minor misconduct. 

1. The line manager will let the employee know that their conduct is unsatisfactory and make them aware of the standards expected without recourse to the formal procedure. 
2. The line manager will hold a confidential discussion with the employee and ensure that they understand exactly what is expected of them. This discussion will enable the manager to provide constructive feedback and the employee to express their views on the issue. Where a need for improvement is identified, the manager will explain to the employee what needs to be done, within an agreed timescale and how the conduct will be reviewed within the agreed period. If the required achievements are not achieved or maintained, the matter will be dealt with formally.  

Stage 2 – Investigation 

1. Before disciplinary action is taken, a full and thorough investigation into the allegation(s) will take place which takes into account any statements from witnesses or opinion(s) as appropriate. 
2. The purpose of the investigation is to determine whether there is a case to answer at a formal disciplinary hearing. 
3. Where the chosen course of action is a disciplinary hearing, the HR will chair the disciplinary hearing.  
4. Proceedings are treated in confidence and records are kept as confidential as is practically possible and as is consistent with achieving a fair and thorough investigation. 
5. Following the investigation, consideration will be given as to whether:
   a. The matter is closed; or, if further action is required: attempts should be made to resolve the matter informally without recourse to a formal hearing.
   b. A disciplinary hearing needs to be arranged: The employee will be issued with a show cause letter and notice to attend a disciplinary hearing.

Suspension 

When an employee has committed a serious offence, s/he may be suspended from duty pending investigation. The purpose of suspension is manifold and can be used when it is necessary to remove a member of staff from the workplace pending an investigation, for example, to allow time for a ‘cooling down period’ for both parties, for their own or others protection, to prevent them influencing or being influenced by others or to prevent possible interference with evidence.  

The following conditions shall prevail; 

1. Notice of suspension shall be given in writing to the employee concerned and all business cards, office access card, staff identity card, office keys and access to email or internet will be suspended as well. 
2. Every effort will be made to reach a decision on whether the employee should be reinstated or dismissed.  
3. Upon conclusion of the investigation, the employee will be entitled to a fair hearing by the disciplinary committee.  
4. If after investigations have been completed the staff member is found to be innocent of the suspected offence, a letter will be written to the employee communicating these findings and all withheld pay and benefits shall be reimbursed. 

Stage 3 – Disciplinary Hearing 

The HR chairing the hearing will arrange a formal hearing, ensuring the following: –  

1. The employee is told in writing, no fewer than three working days in advance of the disciplinary hearing (unless an earlier date has been mutually agreed);  
2. Written notification will include: 
   
   1. the specific nature of the issue;  
   2. the date, time and place of the formal hearing;  
   3. that the employee may be accompanied by a trade union representative or workplace colleague at the hearing;  
   4. the names of any witnesses and those in attendance at the hearing;  
   5. a link to the disciplinary policy and procedure and any written statements, reports and other evidence to be considered; 
   6. that the employee may provide evidence and/or call witnesses to the hearing, and the need to ensure that any witnesses are aware of the need for confidentiality. 
      
3. All documentation relating to the disciplinary hearing must be reasonable and submitted at least 48 hours prior to the hearing to the HR Office. The number of witnesses and any supporting documentation must be in proportion to the level of misconduct itself and must be of a reasonable quantity. 
4. Appropriate arrangements will be made to meet any special needs (e.g. interpreting in the case of language difficulties of the employee). 
5. The employee, and any representative, should make every effort to attend the hearing. 
6. If the employee fails to attend the hearing without good cause, a decision may be taken in his/her absence based on the information available. 

The disciplinary hearing

1. In addition to the HR Office, those in attendance at the disciplinary hearing should include the person who conducted the investigation, minute taker, with witnesses, as appropriate. 
2. The HR Office will explain the issue and go through the evidence gathered during the investigation, including any evidence given by witnesses appearing in person. The employee will be allowed to set out their case and answer any allegations that have been made. The employee will also have a reasonable opportunity to ask questions, present evidence, call relevant witnesses, and be able to raise points about any information provided by witnesses. 
3. The outcome of the hearing is to be communicated to the employee within five working days, unless agreed otherwise. 
   

After consideration of all factors, including any mitigating circumstances, the possible outcomes are as follows: 

Verbal Warning 

Verbal warnings are not cumulative and attract no higher penalty. However, they may be taken into account at the annual performance evaluation.  A verbal warning will be given for unsatisfactory work and /or conduct.  When a verbal warning is given, the Supervisor will follow this up with a file note which will be given to the HR Office and a copy to the staff for record. 

Written Warning 

A written warning consists of a formal letter containing a brief description of the circumstance of the offense and the reason why the action has been taken.  

A. First Written Warning 

If conduct or performance does not meet acceptable standards, the staff member will normally be given a formal verbal warning. They will be advised of the reason for the warning and that it is the first stage of the disciplinary procedure. The warning will be confirmed in writing to the employee and recorded in the employee’s file as a verbal warning. 

B. Second Written Warning 

If, during a consecutive period of twelve months (12) months from the date of the first warning letter, the employee commits another offense, following the first warning, a second warning in writing shall be served by HR. The decision to give this warning letter shall be arrived at in consultation between the supervisor and HR. 

C. Third and Final Written Warning 

If an employee, having received two warnings, commits a third offence within a period of twelve months (12) from the date of the second warning letter, s/he shall receive a third and final warning from the HR. With the third and final warning, the employee is liable to termination of service upon committing further offense. 

NOTE: 

• All warnings shall be entered in the employee’s records. 
• If an employee completes one full year without a further warning, the effect of any previous warning entered in his record, in terms of disciplinary action, shall lapse.  However, the warning letter will remain in the employee’s file and will be considered in matters of performance evaluation, salary, and promotion.

Dismissal 

The Managing Director, or in his/her unavailability, an authorized nominee, a report of all relevant facts leading to a recommendation for dismissal. 

Dismissal may be recommended if: – 

1. the employee is found to have committed an act of gross misconduct as outlined in the company policy manual guided by the Employment Act. 
2. following review there is continued unsatisfactory conduct and or performance. 

Stage 5 – Appeal  

To appeal against disciplinary action short of dismissal, the employee must write to the HR Office within five working days of receipt of the letter informing them of the outcome of their hearing, stating clearly the specific grounds of appeal. 

The appeal will be arranged as soon as practicable. The employee receives notice, in writing, five working days in advance of the hearing. The letter will state the date, time, and place where the hearing is held and the name of the person chairing the hearing. The employee will be informed that they may choose to be accompanied by a witness this has to be or a workplace colleague.  

The HR may reach the following decisions: 

1. uphold the disciplinary action or; 
2. remove the disciplinary action entirely or; 
3. impose a disciplinary action of their own, short of dismissal, which they consider appropriate. 

Appeals against dismissal 

Where a decision to dismiss is taken, the employee may appeal within five working days by writing to the Managing Director or equivalent. Appeals against dismissal are heard by a committee consisting of the HR Office, Managing Director, and respective line managers. In the case of appeals against dismissal, the decision to dismiss shall not take effect until the appeal panel has determined the outcome of any appeal, unless the recommendation is for gross misconduct and the Managing Director has upheld the decision to dismiss. 

The appeal process is a review of the decision to dismiss based on one or more of the following grounds: 

1. that new evidence is available which was not presented at the first hearing; 
2. the dismissal hearing was materially flawed on procedural grounds; 
3. the decision to dismiss was not reasonable in the circumstances.