A JAMES NJERI & Co. ADVOCATES NEWSLETTER
Paul Wolfowitz famously remarked that “firing employees, that’s, unfortunately, part of doing business.” Perhaps I may add that while everyone can fire an employee, not everyone fires well. When a claim for unfair termination is filed before the Court, the employer has the responsibility to prove that the termination was done lawfully. In this newsletter, we have always advised that for an employer to have carried out a proper and legal termination, the process must pass two tests. The termination of employment must pass both the substantive test and the procedural test. In the case of Walter Ogal Anuro v Teachers Service Commission the court stated that“… for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness”
What is substantive justification? This is simply a good reason. The employer must believe that there exists a valid reason for disciplinary action to be taken against the employee. Some of these reasons are found in the law, while others may be organizational policies that have been flouted by the employee. That good reason starts the process.
What then amounts to procedural fairness? The Employment Court in Indogo v Ankole Grill Limited (2023) was invited to answer this very question. The employee had been the head chef at one of the Employer’s establishments. On 25th March 2019, he was issued a show cause letter where the allegations against him were for the use of abusive language and misrepresentation of the Company, which allegations amounted to gross misconduct.
The show cause letter further stated that:
1. A disciplinary hearing had been set for 28th March 2019 at 11.00 am so as to give him an opportunity to make any representation on the allegations against him;
2. He would be placed on suspension until he was either cleared at the hearing or appropriate corrective action taken
3. That he was further directed to submit his written representation before the close of business on 27th March 2019;
4. That he had a right to be accompanied at the disciplinary hearing by a representative of his choice, who would be required to submit his/her written representations, if any, alongside his own;
5. That if he was cleared of any wrongdoing during the hearing, the entire suspension would be converted to leave. If the hearing established that his actions were inappropriate, some or all of the suspension may be converted to unpaid disciplinary suspension. It was further stated that additional disciplinary measures would be imposed up to and including termination.
On the face of it, one can automatically see that there is a problem with the process that was undertaken by the Human Resource team. First, the purpose of a show cause letter is to give the employee an opportunity to respond to the allegations against him. If the response is not satisfactory, then the employee is called to a personal hearing.
The letter of 25th March served as both an instruction to the Employee to make written representations by 27th March 2019 and an invitation to a disciplinary hearing on 28th March 2019.
Justice Linnet Ndolo, in finding this process to be absurd and unknown in law found that, “It would appear that by the time the letter of 25th March 2019 was written a decision had been made that the Claimant’s case would be escalated to a personal hearing. This begs the question as to the purpose of the anticipated representations by the Claimant.”
Why did the employer invite the employee to respond to the show cause while simultaneously inviting him for a disciplinary meeting in the same letter? In the show cause, the employer had indicated that “the ‘written submissions will form the basis of your disciplinary hearing,” so why did they decide a hearing would be done before getting his response? Clearly, it would appear that they had already made up their mind that his offence demanded a hearing, and the employee was simply engaging in an academic exercise. In matters of natural justice, one must be keen not to appear to rubbish the right to a fair trial.
With regards to the hearing, the employee was informed of the particulars of the offenses during the disciplinary hearing. He was not furnished with the details ahead of time to prepare a proper response. The accusations were put across to him during the hearing, and he was expected to defend himself on the spot. No witnesses were called, though he was accused of using abusive language, so he never had a chance to cross-examine the witnesses. His claim for specifics and the identity of the complainants was not granted. In the Court’s mind, many things were wrong with the procedure adopted by the Respondent; first, the Claimant was not allowed adequate opportunity to respond to the accusations levelled against him; second he was not given a chance to face his accusers and third, he was not furnished with particulars of the accusations.
The Court in Andrew K. Tanui v Postal Corporation of Kenya v [2019] eKLR laid out the expectations on an employer when undertaking a hearing. The court stated that an employer should not merely recite the grounds listed in a letter to show cause and then ask the employee if there is anything to add or subtract; the employer must make an effort to explain the charges to the employee at the hearing, call evidence in showing the truthfulness of those allegations, and if there are witnesses, allow the Claimant the opportunity to question the Employer’s witnesses. The evidence contained in documents must be produced.
Based on the above, the Court’s conclusion was that none of the allegations made against the Claimant were proved to the standard required by Section 43 of the Employment Act. The dismissal was, therefore wrongful and unfair and the Claimant was awarded 4 months salary as compensation for wrongful termination, plus 1 month notice.
Conclusion: Unfair termination is quickly gaining ground as a serious risk factor for businesses. Not only does it affect a business’s profitability, but it can also be a source of reputational damage internally and externally for an organisation. Such a loss of reputation can make it difficult for an employer to attract top talent. On Friday, 28th April 2023, we will be undertaking a Webinar Training for Business Owners and HR practitioners on how to carry out terminations that meet the threshold required in law. The webinar is titled “Getting it Right-A guide to Employee Termination” and will be charged at Kshs. 2,500 per attendee.
If you would like to attend this webinar, please send an email to legal@jnadvocates.com for registration.
Written by
James WaNjeri-Advocate
