Disciplinary Procedure In Cases Of Suspected Theft

In the past few days there has been a trending article on a case wherein an employer having engaged the services of a witch-doctor to establish the guilty employees.https://nation.africa/kenya/business/how-witchcraft-ritual-on-worker-backfired-on-giant-transport-firm-4235750
There are mechanisms that are present within the law to enable you to handle such cases.

The Employment Act provides at Section 44 (f) & (g) for instances when an employees’ services may be terminated on account of committing a criminal offence.

“where an employee commits or on reasonable sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.”

The gist of the above provision is that the employee can be summarily dismissed on the grounds of having either committed or having been suspected to have committed a criminal offence against the employer.

Despite this direct provision, all reasons for termination have to be proven by the employer before the termination can be effected. It has to be shown that the employers’ decision making process was fair as envisioned in Section 41 of the Employment Act.

When an issue is reported or comes to the attention of the Supervisor or Manager in charge of a department, the manager shall file a report with the Human resource office, which should do the following before undertaking any disciplinary action:

1. The employee is informed of the allegations made against them in writing and the particulars of the offence and is required to explain the said allegation and or offence in writing this is done through a show cause letter;
2. On receiving the show cause letter, the employee is required to respond to the show cause letter by writing a letter. Never write a letter for an employee as the management, another employee of their choice can write the statement for them.
3. The employer investigates the matter and comes up with witness statements and a report of the offence.
4. In the event the employer is of the view, that there is need for further investigations, the Employer can exercise his discretion and suspend the employee for not more than two weeks on half pay to investigate the matter. Please refer to your Human Resource Policy.
5. The suspension letter shall specify the period of suspension and when the employee is required to report back to work for a hearing and presentation of the findings.
6. The employer invites the employee to a hearing and advises the employee of their right to be accompanied by two union representatives or advocate of their choice;
7. On the date of hearing, the Employer shall hear any representations from the employee concerning the allegation.
8. The employer gives the employee and their representative an opportunity to put questions to the witnesses.
9. The employer gives the employee a chance to call witnesses in support of their case.
10. During the hearing minutes of the proceedings should be taken and the same signed by the employee and his representatives and the employers representatives.
11. The employer takes time to review the findings and informs the employee that time is needed for decision making process.
12. The employee either is cleared of the charges, issued a warning letter or his services are terminated.

For your information Section 19(1) (b)& ( e) of the Employment Act provide as follows:

An employer may deduct from the wages of his employee a reasonable amount for any damage done to, or loss of, any property lawfully in the possession or custody of the employer occasioned by the willful default of the employee;……

Shortage of money arising through the negligence or dishonesty of the employee whose contract of service provides specifically or his being entrusted with the receipt, custody and payment of money;

In cases where the employee is suspected of having committed an offence or has committed a criminal offence, a report of the same should be made to the police to aid in investigations after having concluded your investigations.

Please note that every case has different circumstances and the same should be treated individually, however the employer always has the responsibility of ensuring that fair procedure was followed.

In conclusion, Section 12 of the Employment Act requires an employer who has more than 50 employees in its employment, to document internal disciplinary rules for use in handling disciplinary cases. You are welcome engage our services is coming up with a Human Resource and Management Policy to cover your unique needs.

This is a general guideline and be advised that we shall not be held liable in the event you rely on the information herein without a further in-depth consultation based on your unique circumstances. Our team at Wachira Wanjiru & Company Advocates continues to be available for any consultations that you may require concerning arising legal issues. Contact us at info@wachirawanjiru.co.ke or +254720790133 for your needs.