NJERI WAGACHA: Fairness is the foundation of any dismissal

A dismissal is acceptable if it is both substantively and procedurally fair.

In Summary

•Substantively fair means the reason for termination is valid, and procedurally fair means the termination followed procedure and thus cannot be argued against.

Njeri Wagacha, Partner at Cliffe Dekker Hofmeyr (CDH) Kenya
Njeri Wagacha, Partner at Cliffe Dekker Hofmeyr (CDH) Kenya
Image: NJERI WAGACHA

Our employees are our families.

When businesses grow, employees and employers grow closer to one another.

But prevailing economic circumstances, underperformance and relationship turmoil often lead to a family feud.

No employer can avoid dismissals forever, but there is a right way to go about it, and that means following the law to the letter.

According to the employment, a dismissal is acceptable if it is both substantively and procedurally fair.

What does that mean? Let me break it down.

Substantively fair means the reason for termination is valid, and procedurally fair means the termination followed procedure and thus cannot be argued against.

When it comes to termination, it is the word ‘fair’ is often bandied about.

Before diving into the details of the process, let us examine what fairness means in this context.

By definition, fairness is ‘treating people equally without favouritism or discrimination'.

In the legal sense, it is that word discrimination that we must take note of, for it is the basis of our legal standing in most disputes.

When it comes to terminating an employee’s contract, the reason for termination absolutely, categorically, and without any doubt, has to be considered fair.

That means it is related to the employee’s conduct, capacity or compatibility, or it could be related to the operational requirements of the employer.

Yet, employees, who have been let go dispute their dismissal’s all the time, in fact, it is one of the most prolific dispute activities in commercial law.

People will fight for their livelihoods and find any reason to claim that dismissal is rendered ‘unfair’.

Therefore, employers need to understand the facts before dismissing an employee as they might, in fact, be acting unfairly.

On what grounds may an employee claim their dismissal is unfair? The following factors will be considered when determining whether a dismissal is unfair:

  • If the employer does not follow the proper procedures. For instance, not providing the employee with an opportunity to respond to the accusation against them or not providing the employee with a chance to appeal the outcome against them;
  • Failure to conduct a disciplinary hearing prior to termination;
  • The existence or non-existence of any previous warning letters issued to the employee; and
  • The previous practice of the employer in similar circumstances.

If you’ve dismissed an employee and have not applied one of these factors, that employee may have grounds and will take this dispute to several institutions like the Employment and Labour Relations Court (Labour Courts) where they may be represented by an advocate.

They could even lodge a complaint with a labour officer within three months of the date of dismissal.

Lodging a complaint with a labour officer does not prevent an employee from lodging a complaint with the Labour Courts.

An employee does not need to be represented by an advocate before the labour officer but may however be represented by an officer of a trade union or an official of the employers’ organisation.

It is important to note that, even though an organisation can feel completely justified in dismissing an employee on any number of grounds, the law, and its rigorous definition of fairness, exist to protect the employee in various regards.

Before you decide to hand out a letter of dismissal, you must consider whether the circumstances of this employee render their dismissal automatically unfair in the eyes of the law.

The Employment Act provides that an employer cannot dismiss an employee on the basis of:

  • A female employee’s pregnancy, or any reason connected with her pregnancy.
  • Taking leave, or the proposal to take leave, to which he/she was entitled under the law or the employment contract.
  • An employee’s membership/non-membership or proposed membership of a trade union.
  • Participation or proposed participation in the activities of a trade union outside working hours or, with the consent of the employer, within working hours.
  • Seeking office as, or acting or having acted in the capacity of, an officer of a trade union or a workers’ representative.
  • An employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability.
  • An employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer, except where the complaint is shown to be irresponsible and without foundation; and
  • An employee’s participation in a lawful strike.

Although the bottom line of a business must be protected, we cannot forget that that is driven by people.

We must act with humanity in all pursuits, which is exactly why laws like the Employment Act exist.

Fairness should form the foundation of every business, and although, the operational side of that business can be messy, we must never forget about our integrity as people.

By following the law to the letter, even through a dismissal process, our integrity can remain intact, allowing fairness to prevail.

Njeri Wagacha is Partner at Cliffe Dekker Hofmeyr (CDH) Kenya

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