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.


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