An employer should follow a fair process before reaching the final decision to dismiss or terminate an employee. What’s fair depends on the situation at hand, but they normally need to follow their own rules which must meet the standard set under Article 45 of the Constitution, Employment Act, 2007 as well as Fair Administrative Actions Act.
Fair procedure is provided for in section 41 of the employment Act. Section 26 of the said Act however provides that parties are also bound by their internal terms and conditions of service provided they are not in contravention of any written law.
An aggrieved employee can appeal against a dismissal or unfair decision by disciplinary body constituted by the employer if due process is not followed. This position was reinforced In the case of Caliph O Ogenga vs National Security Fund where it was held that; “before any employee is terminated or dismissed, such an employee must be taken through fair procedure. This is per section 43 and 47 of the Employment Act where the employee must receive notice with an outline of the reasons for such termination. A hearing of the employee is paramount in fair employment and labour relations based on section 35 and 41 of the Employment Act. due process must be followed.
Therefore if an employee can demonstrate to the court that the procedure as set out under the employer’s policy documents was not followed prior to termination then he or she may successfully seek reinstatement and other attendant benefits.
For an employee, the first step upon termination is to check in the contract of employment or HR Manual to see whether the employer has a dismissal or disciplinary process. For example, the process might say that you will get a written warning before dismissal or that you may be required to appear before a disciplinary committee where you would be allowed to have a legal representation. If the employee cannot find one, they can ask the employer about organization’s dismissal process. There might be a standard process they follow even if it is not written down.
Always remember to take note of any ways your employer fails to follow procedure in the dismissal process including dates. Having this record could help you lodge a successful appeal against your dismissal or unfair disciplinary action by the employer. Do not discard or overlook any rule in your employer’s dismissal process even if your employer does not by themselves follow the said rules. This is important as it may save you effort and make your claim stronger should you file a claim in court.
In other instances an employer’s process might avail employees a right to an internal appeal. It’s often worth making this appeal before starting any legal challenge more particularly if you are keen on get your job back.
An employer in conducting a disciplinary process must be guided by the provision of Article 47 (1) of the Constitution which states that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedural fair.
A fair process in an employment scenario would entail, investigation, a letter explaining the charges to the employee, a disciplinary hearing date where an employee is given an opportunity to defend himself, employer’s decision and an opportunity to appeal. The appeal shouldn’t be decided by the same person who originally dismissed an employee though it can be if your employer only has a few employees.
Lastly, an employee should be allowed to come with someone to the disciplinary hearing or appeal meeting. They can take notes, take part in the conversation and discuss things with you during the meeting. These persons could be a co-worker, an official from any union and anyone mentioned in your employer’s internal rules for example a staff representative or a lawyer.Always remember that you have the right to appeal if you disagree with your employer’s decision.
The author is a partner@ Latent & Associates Consultants