Involuntary Exit

Employee separation is the basis of most industrial/labour disputes in Kenya; not really the reason for the separation but the process that was followed when handling the matter.

As a HR practitioner, one of the key things we deal with is how to manage this process, whether it is voluntary or involuntary. For most employers, the quicker it is handled, the better it is for them. For a competent HR person, the process must matter more than the end result, because that is what stands between the company and an upcoming litigation. The end result is given, but then how you go about it makes a whole difference in the long run.

When I began practising HR, I was working at a vehicle maintenance company and a majority of the staff consisted of mechanics. They were all men and then there was me, the new HR Assistant, green, tiny and invisible. One time, my boss called me and asked me to ‘exit’ an employee from the company and the reasons provided were those which would amount to what we call gross misconduct. Until this time, I had never fired someone from work. So I needed to strategise and see how to handle the matter without breaking the employee’s heart so much. They had been very nice to me since I joined and I didn’t see why someone wasn’t being given another chance to change. Needless to say, I had no idea what due process was at the time. Long story short, I couldn’t bring myself to dismiss this employee so I went back to my boss and told him I had tried but just couldn’t do it (I still get shocked when I think about my audacity, lol) You should have seen the look on his face…. and mine! After careful thought, he told me he was driving out to a meeting and when he gets back, if he found the employee still there, one of us (me or the employee) was going to loose their jobs. Speak about baptism by fire! I did not sleep a wink that night.

Back to the subject of separation, there is voluntary separation for instance the employee resigns. In most cases, it’s voluntary, for reasons that are very personal to the employee while there may also be instances of coersion. By legal standards, you are not required to provide reasons for resigning to your employer, but for purposes of good faith and best practise, we find ourselves sometimes mentioning this. Then we have involuntary separation and for purposes of this article, I’d like to focus on summary dismissal in the Kenyan context which is as a result of gross misconduct. Part VI, Section 44 of the Employment Act 2007 has outlined what is considered gross misconduct. I must also ask you to be sure to interpret that section in the context of the industry you work in.

Most employees do not understand their rights even in cases of misconduct. First thing you must be aware of is that you are entitled to a fair hearing regardless of your offence or the employer’s urgency in getting read of you. Just like we say ‘innocent till proven guilty’ in a court of law, the same principle applies at work. You will need to be charged officially for the offence using a document we call a ‘show cause why letter’. You must also be provided with an opportunity to defend yourself in the presence of a disciplinary panel. You have a right to representation. If you belong to a Union, you must bring along your Union Rep or shop steward, if not, you may choose an employee of your own choice to represent you. You also have the right to refuse representation, but you must communicate this to your employer. What you cannot do as an employee is to have a representative of your choice come from outside the organisation. Your lawyer, parent, external friend cannot represent you in this forum because it is an internal company process. Also, you have the right to appeal the decision the panel makes within a given timeframe. I cannot over emphasise on your right to be paid your final dues.

You must also remember that the law cuts across both sides. So the employer also reads and makes reference to the same Employment Act. This means that even if you refuse to respond to the show cause why letter or fail to attend the disciplinary hearing without communicating, the process shall proceed in absentia. After all, time waits for no man…or woman and so the hearing will be done and communication sent to you on email or through registered post. The employer only needs to prove that they did the due diligence of informing you about your charges and hearing but you failed to act on your part. The employer also has the right to reject your appeal by upholding the panel’s decision or it can overturn the panel’s decision by reducing your punishment and reinstating you back to work. This will be dependent on how you argue your appeal case.

And why here allow me speak about employee suspension. Suspension is not the end result after an employee commits an offence but part of the disciplinary process that is initiated by the employer to allow for thorough investigation, as they build their case, without interference. In the legal context, what I mean is that there is nothing called ‘suspension without pay’ (regardless of the offence). An employee must be paid while they are on suspension because they are still your employee even when on suspension. If you choose to send someone on suspension with half pay, you must remember that once the case is over (regardless of the outcome), the other half of their pay must be paid. If you send them on suspension and decide to close the matter there, legally, they are still employed by you. Pursue the case to conclusion by having a proper hearing that adheres to the principle of due process.

The next time you are caught in a disciplinary case, do not just fold your arms and give up. Make a point of defending yourself. Sometimes, people loose jobs because they did not fight hard enough. Know your rights therefore… and your responsibilities for every right you claim.