Separation, part II
5 years ago
We continue the discussion on the various ways that an employment contract can be brought to an end. This post will deal with terminations by the employer.
An employer must have a valid reason for terminating an employment contract. The reason may be based on the performance or conduct of the employee or the operational requirements of the employer.
- The first step in the termination process is for the employer to communicate to the employee the reasons why the employer is considering termination.
- The explanation should be communicated at a meeting at which the employee is entitled to have either a union representative or a fellow employee accompany him. At the meeting, the employee should be notified of the date of the disciplinary hearing.
- The purpose of the hearing is for the employee, and the person accompanying him, to make representations on the allegations .
- After the hearing, the employer should adjourn so as to consider the matter and the employee’s representations, prior to taking a decision.
- As a matter of good practice and to protect the employer in the event of any challenge, the entire disciplinary process – from the explanation meeting – should be documented and at least two (2) representatives from the employer should be present during the entire process.
- Minutes of the disciplinary hearing should be taken; those present should be asked to sign the minutes (immediately on conclusion preferably). If the employee declines to sign, the rest of the people present should ensure that they sign and date the minutes and an endorsement should be made to confirm that the employee was requested to sign the minutes but declined.
- It is advisable to get a written response to the allegations from the employee, and any employee who will be accompanying him, ahead of the hearing – this is useful in preparing for the hearing.
- The employee must be given a reasonable period to prepare for the hearing. What is “reasonable” depends on the nature of the allegations.
- The employee should also be given access to the information and documents that they require to defend the allegations. Copies of witness statements and investigation reports, for example, should be given to the employee. There are instances when an employer may be able to justify withholding certain documents. It may also not be necessary to share an investigation report as long as the employee is given copies of the evidence in support of the allegations. If the employee needs access to information in a computer or other records, the employer should facilitate supervised access.
In Kiama Wangai v Egerton University  eKLR it was held that: “This statutory provision has not expressly, provided that the employer ought to provide an employee with all documents, evidence or material it has in its possession before or during the disciplinary process…In my view, the basic essentials of the protections afforded an employee by Article 41 of the Constitution and section 41 of the Employment Act, 2007, are that the employee should be informed in sufficient detail of the allegations…In my view, the Petitioner here has been informed with sufficient clarity of the allegations to confront, been provided with relevant material, and he should stoically appear before the Disciplinary Committee as invited and should the Respondent fail to meet the requirements or comply with the statutory and/or contractual protections, the Court would intervene accordingly if moved.
- It’s important to note, however, that the decision to terminate cannot be based on evidence that is not shared with the employee.
- If an organization’s contractual documents (HR Manuals, Disciplinary Policies etc.) provide additional termination procedures then those requirements must be adhered to. It’s advisable to make disciplinary and termination processes simple and clear.
- The Employment Act only talks about the employee being represented either by a fellow employee or a union representative. In the case in the link provided, the Judge held that there is no harm in allowing lawyers to participate if the matters involved are complex – file:///C:/Users/user/Downloads/Cause_2192_of_2012.pdf. This, in my view, is not a good practice because lawyers inevitably turn disciplinary proceedings into court-room sessions
- This procedure applies for both termination by notice and summary dismissal.
The burden of proving that the reason for termination is valid and that the termination procedure was followed lies with the employer.
Section 12(1)(b)(i) of the Employment Act places an obligation on the employer to specify the person to whom the employee may apply if dissatisfied with any disciplinary decision (this is mandatory for organizations with 50 or more employees).
The manner in which any appeal against a disciplinary decision is handled is a factor that is considered by the Employment & Labour Relations Court in deciding whether the termination was just and equitable (Section 45(5)(a)).
Does the procedure apply for all disciplinary matters?
The procedure only applies where the allegations against the employee, if proved, would entitle the employer to terminate the contract, not where a lesser sanction would apply.
Can an employee who is undergoing disciplinary proceedings be sent on suspension?
If suspension is provided in the contract, otherwise the employee may be sent on administrative leave.
What happens if the employee fails to show up at the hearing?
He is deemed to have failed to show cause and the employer is entitled to take appropriate disciplinary action.
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