Employers have been complaining that the Industrial Court is quite harsh towards them. Some have argued that the industrial court is highly skewed in favour of employees. The proponents of this view argue that the court is a pro-employee court and employers stand no chance to win a suit in the court. This view has resulted to some responding with anger, disdain and admonition for the Court. Yet the wise ones should seek to investigate whether this is truly the case and what can be done to remedy this and avoid the risks that follow.
However, I believe that “Fidelity to the Law” is what exemplifies the industrial court in Kenya. You see all that the Industrial Court is doing is enforcing the law more strictly. Although the court tries to even the imbalanced power relations between employees and employers, the Court has simply been firm in enforcing the provisions of the law especially the Employment Act. When this happens, employers who have not been complying with the procedural and substantive aspects of the law will obviously receive adverse orders.
If an employee’s services are terminated unfairly, summarily dismissed without cause, an employee is not paid terminal dues, an employee is discriminated upon or even victimized, such conduct will obviously not portend well with the Court. The industrial court has been keen to ensure that both the procedural and substantive aspects of the employment act are enforced. An employer must conduct the employment relationship within fair rules that are stipulated in the Employment Act. Secondly, the reason for taking certain action must be fair and just.
Today we will highlight the most important aspects of procedural compliance. In this country, just like the world over, majority of people derive their livelihood through employment. The employment relationship is one that affects not just the employee, but the family too. It is therefore a most important relationship. That is why the law will frown upon the mode of firing popular in the media where an employer comes up to an employee and pronounces ‘You are fired’. This will not suffice under the watchful eye of the industrial court.
Procedural compliance mainly involve affording an employee a fair chance to be heard on any allegations raised before any adverse action is taken. This requirement prevents cases where decisions about the fate of employees, for instance a decision to terminate employment, are made in a rushed manner without involving the employee.
For instance when an employer calls an employee for an impromptu meeting only to serve the employee with a termination letter, without an explanation. In this case the employee may also asked to leave the employer’s premises immediately and only return after one week to collect the terminal dues. In this scenario, the employee could also be informed of various allegations of misconduct without being given an opportunity to respond.
Well, let us now clarify what a fair hearing entails as per the provisions of the law and most importantly, the pronouncements that the Industrial Court is making. To begin with, a fair hearing simply entails giving the employee an opportunity to be heard before any adverse action is taken.
Before terminating an employee or undertaking summary dismissal, an employee should be informed of the allegations against him. Such communication should also inform the employee of the date when a formal hearing will be conducted. During the formal hearing the employee should be allowed to be accompanied by another employee or representative of his choice (lawyers should be excluded at this stage). An employee should provide a response to the allegations in writing or orally during the hearing since the allegations had been communicated in advance.
The employer is not stopped from proceeding with the decision to terminate or summarily dismiss if the employee does not give a reasonable response. An employee can dispute all allegations and in such a case the employer only needs to ensure that a fair opportunity to be heard is given. It is for a conciliator or the court itself to then determine whether the reason for termination was fair and just. What is important is that the employer has complied with the first limb of procedural compliance.
The final decision should also be communicated in writing highlighting the reasons for termination or summary dismissal. If dissatisfied, the employee can file suit. In this case however an employer will easily prove that a fair hearing was afforded to the employee. If the court is satisfied, it will then delve into the merits of the decision.
In conclusion, it is important that employers adhere to the procedural requirements of the employment law. This will help employers avoid the risks that come with litigation. I believe that it also puts a human face to the termination process and dignifies the severance of the employment relationship.
1 comment:
The era of 'you are fired' is long gone.
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