Suspension with no pay!
4 years ago
Suspension is quite commonly applied in workplaces. This article examines the legal principles that govern this practice.
Definition and use
Suspension gives the employer an opportunity to carry out investigations into possible misconduct.
In the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited  eKLR, the court held that: –
A suspension therefore is ultimately a right due to an employer who on reasonable grounds suspects an employee to have been involved in misconduct, or poor performance or physical incapacity and wishes to remove such an employee from the work place to enable further investigation without subjecting the employee to further commission of more acts of misconduct, under performance or the conditions leading to incapacity.
In Donald C. Avude v Kenya Forest Service  eKLR, the court quoted from the case of Cabiakman V Industrial Alliance Life Insurance Co.  3 S.C.R. 195, 2004 SCC 55 where it was held that: –
…administrative suspension is “a preventive measure which can be taken when the interest of the employer’s business require it, even in the absence of an act made by the employee while working.
Legal foundation for suspension
The Employment Act, 2007 makes no provision for suspension; what then is the legal foundation of this practice?
In Timon Otieno Mboga v Kenya Forest Service  eKLR, the court held that: –
The Employment Act, the Industrial Court Act or any other Labour Law for that matter, do not provide for suspension. The Employment Act however provides at Section 12 that every employer which employs more than 50 employees must have a statement on disciplinary rules…Issues such as interdiction and suspension therefore ought to be provided for in the statement of disciplinary rules.
The position that was upheld for a long time was that an employer who wishes to utilize suspension should ensure that suspension is provided for it the organization’s policies. Recently, the Court of Appeal has held that an employer has the right to suspend an employee (Charles Muturi Mwangi vs Invesco Assurance Co. Ltd, Civ Appeal No. 270 of 2017).
In Shedd Dennies Simotwo v Speaker, Narok County Assembly & another  eKLR, the court held that: –
For a suspension of an employee to be lawful, it must have either a contractual authority or statutory underpinning (see Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd (2015) eKLR and McKenzie v Smith (1976) IRLR 345).
The practice of sending employees on compulsory leave (which is then offset from the employee’s leave entitlement) is not lawful. Annual leave is a right which should not be applied for any other purpose other than for the employee to rest; it should not be used for the employer’s administrative purposes. See David Wanjau Muhoro v Ol Pejeta Ranching Limited  eKLR.
Should an employer communicate the reasons for the suspension?
No, this is not necessary. See Gregory Otieno Owouth v Mumias Sugar Co. Limited  eKLR
Should suspension be on full pay or half pay or no pay?
The position is not settled. The different views are: –
- As long as an employee has not been terminated, the employee is entitled to their full pay. Those who adopt this position argue that a person is “innocent until proven guilty”;
- The decision on whether or not to pay the employee during the period of suspension depends on the outcome of the disciplinary proceedings;
- The salary can be withheld if permitted in the organization’s policies; and
- Suspension should be for a defined period if it is to be with no pay.
In Donald C. Avude v Kenya Forest Service  eKLR, the court held that: –
…suspension should be for a determinate period where such suspension is without pay. Otherwise it would constitute inhuman treatment …
In Paul Ngeno v Pyrethrum Board of Kenya Ltd  eKLR, the court held that: –
… Thus, the court holds that whether an employee will be paid during the period of interdiction or suspension will depend upon the outcome of the disciplinary proceedings. It would be unfair labour practice to deny an employee payment during the period of interdiction or suspension if at the end of the disciplinary process the employee is found innocent. Similarly, it would be unfair labour practice for the employer to be required to pay an employee, during the suspension or interdiction period if at the end of the disciplinary process the employee is found culpable…
In Thomas Sila Nzivo v Bamburi Cement Limited  eKLR, the court held that: –
No provision under this law allows the Employer to deny a suspended employee his monthly salary …The suspension without pay, offended the principles of Fair Labour Practices and Protection of Wages.
In Peterson Ndung’u & 5 others v Kenya Power and Lighting Company Limited  eKLR, the court held that: –
The Court’s understanding of the practice of withholding of Employee’s emoluments during the disciplinary process … on close scrutiny, indeed has no foundation in the Employment Act. It has no legal validity.
It is difficult to justify the practice, as there is no specific legal provision under the Employment Act 2007, suggesting an Employee whose contract of employment is still running, should forfeit his monthly salary while on preventive or administrative suspension.
See also: –
- Mariko Oluoko Kanga v Kenya Railways Corporation  eKLR;
- Wilson Shisia Nyangweso v Church of God in East Africa (K)  eKLR; and
- Thomas Maganjo v Mwirua Farmers Co-Operative Society Limited  eKLR
What’s the maximum duration of suspension?
Our courts have held that 6 months should be the maximum suspension period and that an indefinite or longer period amounts to constructive dismissal for which an employee may sue for reinstatement or damages.
In Joseph Ndung’u v Mastermind Tobacco (K) Ltd  eKLR, the court held that: –
An employee cannot be kept on suspension indefinitely and I agree with the Claimant that his continued suspension amounts to constructive dismissal amounting to unfair termination of employment.
In Benuel Mariera v Awanad Enterprises Ltd  eKLR, the court held that: –
Consequently the court finds on balance of probability that the claimant’s employment was constructively terminated by the respondent. The foregoing finding is founded on the fact that although the claimant’s suspension was with full pay, the respondent never paid him any salary during the suspension. Secondly, the suspension was indefinite and the claimant was supposed to handover all the company property. Lastly the claimant was never called back to work even after the alleged investigations with respect to the lost cargo failed to implicate him.
See also: –
- Francis Mangera Kionga v Kenya Revenue Authority  eKLR;
- Esther Wambui Ndua v National Bank of Kenya  eKLR;
- Rashid Jeneby v Prime Bank Limited  eKLR;
- Lilian Maina v Llyod Masika Limited  eKLR;
- Cecilia Muthoni Njoroge v Nairobi Stock Exchange  eKLR; and
- Charles Muturi Mwangi v Invesco Assurance Company Limited  eKLR
The suspension period provided in the organization’s policies must be adhered to otherwise the suspension will be found to be unlawful. See: Gregory Otieno Owouth v Mumias Sugar Co. Limited  eKLR.
All cases can be accessed at http://kenyalaw.org/caselaw/.
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