Written by
James WaNjeri-Advocate
One day, while in the course of your work, you receive a letter or email titled “NOTICE TO SHOW CAUSE” from your employer or the HR personnel. Such a letter can be a source of great anxiety and may have a destabilizing effect. Over the years, employees have responded differently to a notice to show cause and their responses have either been proper, or they have been a source of regret. In our article today, we handle the do’s and don’ts for employers and employees when it comes to a show cause letter. First, a show cause letter should not be a source of fear or anxiety when issued in accordance with the law. Every employer has the right to hold employees accountable for their actions. A show cause letter is issued to an employee, inviting them to answer to allegations of misconduct ahead of a disciplinary hearing. The letter is addressed to the specific employee and it should clearly indicate the details of the misconduct complained of. Often, this is the first step in a disciplinary matter, where the employer deems that an employee has done or failed to do something that warrants disciplinary action.
One of the common mistakes many employees make is to ignore the notice to show cause letter. In some instances, employees even use foul language and threats of violence against the employer. This is not a proper way to deal with a show cause.
As an employee, remember that the show cause simply wants you to show the employer why disciplinary proceedings should not be taken against you. If your response to the issues raised against you is satisfactory, then the next step of inviting you to a hearing is usually not activated. First things first, what should a show cause letter contain? In Nicholas Muasya Kyula v Farmchem Limited ICN 1992/2001 the Court laid down what legal and constitutional ingredients a show cause letter should have as follows:
- be written in a clear and dispassionate manner;
- be issued as soon as practicable;
- Identify the workplace issue giving rise to the disciplinary action. This may be a breach of a particular law or code of conduct, or relate to a specific term in an employment contract;
- identify any relevant workplace history, including any prior written warning letters;
- address with sufficient particularity the factual allegation or allegations being made against the employee requiring a response,
- Such-particulars will likely require the times, dates, places and circumstances for each allegation being made. In some instances, names of witnesses or supporting information (such as documents) should be disclosed;
- be accurate and not omit or misrepresent any relevant circumstance; and,
- Afford a fair’ time for the employee to make an effective response.
So how do you ensure that all these ingredients are met in a way that satisfies the legal requirements?
First, the letter must be written in a language and manner that is easy for the employee to understand. If for any reason the employee is unable to understand the contents of the letter, then the employer is under a duty to explain it to the employee in a language that they understand. If the employee suffers from a physical incapacity such as blindness or is deaf, the employer should endeavor to use the best means to ensure that the letter and the contents are explained to the employee. Secondly, the employer is under a duty to ensure that the letter reaches the Employee directly within a reasonable period. Instances where a show cause is backdated, and the employee is then accused of not responding, amounts to unfair conduct on the part of the employer. We often advise our clients to ensure that they create a process that can be audited easily. For instance, some employers have occurrence books that they use to record when someone receives a letter. Some will insist that the employee signs a copy of the letter for their records. The Employment Act lists several reasons that would cause an employer to undertake disciplinary proceedings against the employee (Section 41). The show cause letter must highlight the issue that has caused the employer to initiate disciplinary proceedings. The reasons could include gross misconduct actions, breaking the employer’s policies and code of conduct, or specific terms in the employment contract that have been violated. Where an employee is being accused of repeated misconduct, the warning letters that had been previously issued can be highlighted in the show cause. The issuance of a warning letter by an employer to an employee is a disciplinary action and it often marks the tail end of any form of disciplinary proceedings that may have preceded it. The Court, in the case of Dr Joseph Maingi v Permanent Secretary Ministry of Medical Services & another [2015] eKLR ruled that once some form of disciplinary action is shown to have taken place against an employee, offences forming the subject matter of the concluded disciplinary process cannot be used against the employee at a future date. An employer cannot, therefore, use warning letters as a basis for terminating an employee’s contract of employment. However, they can be used to show that there has been a repeat of the matters complained of.
When it comes to the actual offenses the employee is being accused of having committed, the law is very clear that you should answer to charges that are specific. General accusations without indicating what exactly the employee needs to respond to have been held to be a violation of a right to fair trial. Knowing what you’re charged with enables you to file a clear and sufficient response in your defense. Beyond a description of the charge, the employer must go into sufficient detail, highlighting the who, when, what, why and how. If allegations are that an act was committed on a certain day, all those details must be captured in the show cause. The Employer is also under a duty to ensure that the show cause letter is comprehensive.
Where the allegations are based on documentary evidence, then copies of those documents should be made available to the employee. If, as an employee you feel that the show cause does not provide sufficient information to enable you to file a response, you can request the employer to supply you with specifics. In some instances, the employee can be supplied with the names of witnesses and documents relied on. Any Employee served with a notice to show cause has a duty to respond to it. Failure to respond to the notice to show cause does not stop your employer from proceeding with a disciplinary hearing against you. The purpose of the notice is to invite you to tell your side of the story. If the period within which you must respond is limited or insufficient, you can respond by asking for more time. The court will determine whether the period issued was fair. Where the allegations against you are not clear or you need a further explanation, you have a right to ask for that. It is advisable to obtain legal advice that helps you navigate through the disciplinary process. For employers, Kenya’s Employment Act sets out an elaborate process for handling employee discipline. Good decision-making is a vital element to the success of your organization. If decisions about employees are made in a manner that violates the processes laid out in the law, the Court will often rule in favor of the employee. Our courts have repeatedly held that where the law provides for a specific process to be followed, failure to follow that process often nullifies the outcome. Every person, including employees enjoys the constitutional right to a fair trial. For employers, failing to issue a notice to show cause means that the disciplinary process is flawed from the start. Employees must be informed of the case against them so that they present their defense. After that, a decision is made to either withdraw the show cause letter or to invite the employee to a disciplinary hearing. It’s common to find that employees have been terminated from employment in some very unconventional ways. If an organization has a culture that does not promote following processes, it’s common to hear of cases where employees have been terminated in an illegal and erratic manner. Some employees are fired on the spot, others are not taken through a hearing while others are taken through a sham hearing. Conclusion After significant capital investments in businesses, it is a risk for a business owner to fail to invest in hiring skilled personnel or regularly upskilling key employees on workplace legal matters. Businesses can suffer significant loss or even ultimately fail for failing to adhere to the various laws that regulate different work environments and issues that arise. 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. Register for this webinar by sending an email to legal@jnadvocates.com
