The disciplinary procedure is provided under Section 41 of the Employment Act. The procedure generally encompasses the following steps:
- Explaining to the employee in a language the employee understands, the reason for which the employer is considering termination;
- Allowing a representative of the employee, either another employee or a shop floor union representative of his choice, to be present during this explanation;
- Hearing and considering any representations which the employee makes in defense of the grounds of termination, and hearing the representations of the employee’s representative.
An employer is required to follow the set internal disciplinary rules (if any) while conducting the disciplinary process. Section 12 of the Employment Act requires that these rules be set by an employer when he has more than 50 employees. Employers who do not have internal disciplinary rules must strictly adhere to the irreducible statutory minimum procedures as enumerated above.
To supplement the above irreducible statutory minimum procedures, courts have come up with the following effective guidelines and objective steps:[1]
- A report to the relevant authority that a misconduct has been committed by an employee.
- A preliminary report to gather relevant information on the alleged misconduct.
- If the evidence is obvious and the misconduct is gross, the employer can summarily dismiss the employee.
- If the evidence is not obvious and the misconduct is not gross or its weight is not clear during the preliminary investigation, the proper notification is drawn. The notification commonly referred to as a Show Cause Letter must clearly spell out the intended ground for termination being misconduct, poor performance or physical incapacity. The particulars must be clear enough for the employee to be able to effectively defend himself or herself. The notice must give the employee reasonable time within which to respond.
Additionally, the notice should inform the employee of his fundamental right to have at the hearing a person of his choice, his Union or a fellow employee. Whether the employee is aware of this right or not, the duty is vested upon the employer to reiterate these rights and dully accord them to an employee being subjected to disciplinary proceeding.
Where an employee chooses not to have such representation or the presence of a fellow employee of his choice, then this must be carefully recorded as when raised at any hearing before a Court of law, the Court is as a matter of justice, caused to refer to such proceedings. In the absence of such confirmation that the employee was represented by his Union or a fellow employee of his choice present, then employer makes a fundamental omission in the disciplinary process that does not meet the tenets of section 41 of the Employment Act, thus negating the proceedings and any decisions therefrom.[2]
- Upon responding or the time allowed lapsing, the employee should be called to a hearing. At the hearing all relevant information should be recorded in a fair process where the complainant is not leading or chairing the proceedings. The employee should be given ample chance to exculpate oneself. A third party of the employee’s choice should be permitted to attend the hearing.
- A report of the hearing proceedings should be drawn and formally maintained by the employer as evidence of due process of fairness. The report must set out the findings on the allegations, any mitigating or aggravating factors and the recommendations which may include the termination.
- The decision made must then be communicated to the employee.
[1] NICHOLUS MUASYA KYULA v FARMCHEM LTD [2012] eKLR
[2] Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 others [2014] eKLR