Due Process

If you are a Human Resources Practitioner, you have probably heard this term a thousand times.

The reason I’m writing about this subject is because in my assessment, one of the biggest ‘illnesses’ in start ups/family owned/run businesses is the lack of patience by business owners when it comes to the separation process with employees. What do I mean by this? There have been instances where an employee commits an act that is considered Gross Misconduct ( you may refer to Part VI, Section 44 of the Employment Act 2007 for further reference) or in other instances and especially in the family run business set up where ‘the Boss just doesn’t want to see employee X anymore’.

The common practice would be that the Boss will call in the HR and instruct them to get rid of employee X by close of business or in worst case scenarios, the Boss will do it on their own and inform the HR later (or not). In the first case, since the HR does not want to look bad in front of the Boss, they’ll go ahead and issue a letter of dismissal immediately. Case closed! There have been cases of people being fired via a text message. The problem is that this case is actually not closed, it’s just beginning.

When you visit the Industrial Court in Kenya, most of the cases registered there are as a result of such practices. Why? The company failed to follow the due process. Companies have paid large sums of money to employees in form of compensation because of this, regardless of how genuine the employee’s offence was. For some reason, employers don’t learn. It is important to understand that no matter how aggrieved you are as an employer, there is a laid down process of separating with an employee. It may seem long and exhausting, especially when the employee is not being cooperative but the results at the end of the day covers you from future litigations.

Every employee is entitled to a fair hearing in case of misconduct before they can be terminated or dismissed from the organization, regardless of how ‘urgent’ or serious the issue may be. And this does not include calling them in your office, just the two of you and listening to them, this does not constitute a fair hearing. Charge the employee officially by issuing a ‘Show Cause Why’ letter and have them respond within a specified time period. They must be accorded an opportunity to bring a representative of their own choice at the scheduled hearing or appoint one for them in case they can’t provide one. If they are unionized, a Shop Steward or a representative of the Union must be present. All minutes must be taken down for future reference and the decision of the hearing communicated to the employee within reasonable time. Also remember that it is an employee’s right to appeal a disciplinary decision within a specified period of time. The appeal cannot be made to any member of the same committee that made the decision, it must be a senior person. And yes, compute and pay them their final dues. This is not a favor, it’s s right too.

The point I’m trying to bring up here is that it’s never that urgent like you think. In the end, compensating an employee who probably did you a bigger wrong is more painful than taking your time to go through the entire disciplinary process before making a decision. It is like rewarding them for their mistake.

As a business owner, patience is key here. There are other ways to keep an employee out of work for the investigation period if you feel that their presence in the company might cost the company more damage. Making such serious and lasting decisions based on your current emotions might cost you a large sum of money and a long period of back and forth in the courts, which can be very exhausting. To the HR Manager/Officer, it is important that you advise your employer accordingly and act in accordance with the laid down guidelines. Your decisions matter a lot.

When it’s a Family Affair

What was your experience employing or working with a family member in the same company you work?

I’m most interested in hearing from human resource professionals on this area who are tasked with balancing the needs of the company and that of the rest of the staff, together with now maintaining a family relationship with the said relative. As Africans, we have been raised up in a community set up where you grow up around your cousins, aunts, uncles and so on. It is therefore expected that when you ‘make it in life’, you pull up the rest of your relatives who are most likely not in the same level as you by getting them jobs or assisting them start some source of income venture. As much as this is the expectation of the society (it’s more of a psychological contract than anything else) some family members actually demand for it. After all, you are a community baby. There is a lot of pressure that comes with this responsibility however. That’s because sometimes, you getting these jobs for the said people is not based on their qualifications or ability to deliver but on the mere fact that you are related.

So what happens when you succeed? There are a variety of outcomes here. Either the kin will put in their best and advance themselves or some will look at it as a favor they are doing to you and as a result use your personal relationship with them to their advantage every chance they can.

When you choose to work with your relative in an organization, especially that company that you do not own, it is important to maintain a certain level of professionalism especially at work. When you are the HRM for that company, the pressure to maintain the same doubles. That’s because every move you make for or against the relative is closely watched by the rest of the team. There is bound to be allegations of favoritism even in instances where non exist. On the other hand, your kin might also decide not to make it very easy for you by continuously behaving in a manner that takes advantage of that relationship or by simply just embarrassing you with their actions.

In HR practice, there may be instances where you are required to take disciplinary action against an employee who also happens to be a relative of yours for a misconduct. Your objectivity in the process will always be in question, no matter how professional you conduct yourself. Should the case be ruled in favor of the employee, there will be accusations of favoritism from some quotas and if it is ruled against the employee, well, it could end up being a family subject of discussion on the next family gathering, a whole new disciplinary hearing for you.

There is no crime or problem in hiring or working with a relative in the same organization. However, it is very important for you to weigh the pros and cons of this decision before you make it. Aside from the fact that family relationships are generally complicated, when that complication is brought to work and mixed up with the daily work related stresses, there is bound to be fireworks. You need to be able to assess the character of the person you are looking to engage, just as you would do for a normal job seeker. In the end, whether you like it or not, once you have this kin at work and you are the HR, everything and anything they do will always be tied to you.

I therefore believe that it is not advisable to mix work with family. However, if it works for you, well and good. If you got doubts on the same, you can always seek other alternatives.