What does the law say about Interdiction?
10 months ago
Questions surrounding interdiction are very commonly asked. This article is dedicated to answering your questions on what interdiction is and how it is lawfully applied.
What is interdiction?
It seems that there is no fixed definition of interdiction and that it depends on the context and the terms of employment.
Some will say that interdiction and suspension are one and the same thing, that is, to require an employee not to attend the work place either for investigative purposes or as a disciplinary sanction and that in Kenya, interdiction more commonly arises in the public service whereas suspension more commonly arises in the private sector.
In other contexts, suspension is considered a neutral action taken to facilitate investigations whereas interdiction is a disciplinary penalty that can be coupled with the employee’s salary being withheld. This is the position that was taken by the Court in the case of Teresia N. Peter vs Kitui Teachers Savings & Credit Co-Operative Society Ltd  eKLR.
Based on my research, the terms “interdiction” and “suspension” are one and the same thing unless otherwise provided in the employment contract.
What constitutes a lawful interdiction?
- Interdiction must be provided in the contract if it is to be lawfully applied in the employment context;
- The interdiction must be carried out in strict compliance with the provisions of the contract. Where, for example, the contract gives powers to interdict to a specific person, where the powers are exercised by someone other than the authorised person, our courts have held that the interdiction is unlawful;
- In the case of preventive interdicts, it must be clear that the employee’s continued attendance at the work place will jeopardize the investigations;
- The period of interdiction should not be unreasonably long, otherwise the employee is justified in considering himself as having been constructively dismissed;
- Unless otherwise provided in the contract, in the case of preventive interdiction, it is proper to withhold all or part of the employee’s pay during the period of interdiction, pending the outcome of the disciplinary proceedings;
In Fredrick Saundu Amolo vs Principal Namanga Mixed Day Secondary School & 2 others  eKLR, the court had occasion to look into the interdiction question and the decision has been endorsed in many subsequent decisions. The following was held in that case: –
It is important to note that there can be preventive interdicts or punitive interdicts. On the one part being an interdict that is done in the context of allegations of misconduct prior to finding of guilt and the other interdict is implemented as a sanction after the finding of guilt.
A Punitive interdict can only issue in circumstances where the employment contract, the employer code of conduct, the Collective Bargaining Agreement or the law allows for it as a sanction…
Whether it is preventive or punitive, the interdict, suspension…to be valid must meet the requirements of substantive and procedural fairness. This is the position articulated in Chirwa versus Transnet and Others  2 BLLR 29, at the Constitutional Court of South Africa and reiterated by this Court in Industrial Petition No 150 of 2012, in the Matter of Joseph Mburu Kahiga et al versus KENATCO Co. Ltd et al. This is so because, suspensions and interdictions are not administrative acts as the detrimental effect of it impacts on the employee’s reputation, advancement, job security and fulfillment…
There must be a clear reason why the employee’s interdiction is necessary, independent of any contention relating to the seriousness of the misconduct… Thus a suspension or interdiction should only follow pending a disciplinary enquiry only in exceptional circumstances, where there is reasonable apprehension that the employee will interfere with any investigation that has been initiated, or repeat the misconduct in question. The purpose of such removal from the workplace even temporarily, must be rational and reasonable and conveyed to the employee in sufficient detail to enable the employee to defend himself in a meaningful way…
Once these preliminaries are addressed, then the employee must be heard on the merits of the case as a cardinal rule. This is not to revisit the decision to suspend or interdict, the hearing is simply aimed at determining the allegations leveled against the employee and any defences that the employee may wish to make. Only then, after the close of the hearing or investigation is a sanction issued to the employee.
In a case where an interdiction is the sanction, the period of the interdiction must be stated and the reasons for the same as well as what the employee is expected to do during this interdict to avoid further injury to the reputation of the employee or any stigma as a result.
Where an interdict is without pay or a condition that removes part of the pay, this must clearly be indicated together with the applicable provisions, administrative policy, the law or the employment contract. Where these do not exist and are stated, the employee must remain on full pay and any deduction without valid cause would be in breach of the employment contract on the part of the employee and an unfair labour practice…”
What happens where the period of interdiction stretches beyond the stipulated period?
In Peter Opiyo Mc’odero v Laikipia University  eKLR, the Court held that: –
In my view, where there is an express provision for interdiction or suspension and the interdiction or suspension stretches beyond such period, the employee would be entitled to all benefits prior to such interdiction or suspension.
Where the interdiction is inordinately long…
In Paul Masinde Simidi v National Oil Corporation of Kenya & another  eKLR, the Court held that: –
The only thing I will say on this score is that to keep an employee on interdiction for as long as one year amounts to constructive dismissal and is an unfair labour practice within the meaning of Article 41 of the Constitution.
What if the interdiction is found to be unlawful?
In Michael Kagoma Maina vs Kenya Police Service & 2 others  eKLR, the Court held that: –
In making the finding, the court upholds its opinion in Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers –Versus- Timber Treatment International Limited,eKLR, Industrial Cause No. 21 of 2012 at Nakuru, page 10-11, where the court stated as follows:
“In making the findings the court considers that the employee is entitled to pay for the period he or she is kept away from work due to unlawful and unfair suspension or termination…During such period, the court considers that the employee carries a valid legitimate expectation to return to work and not to work elsewhere until the disciplinary or the ensuing conciliatory and legal proceedings are concluded… The exception (to such entitlement to partial reinstatement for the period pending a final decision on the dispute) is where it is established that during that period, the employee took on other gainful employment or the employee fails to exculpate oneself as charged.”
If an interdiction is found to be unlawful or unfair, the employer will be required to reinstate the employee and pay all withheld remuneration.
This article should be read together with the earlier article on suspension Suspension with no pay!
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