Following the establishment of the Industrial Court as an arbiter in industrial and employment dispute, there has been as significant increase in cases involving summary dismissal, usually effected after and employee has been charged with a criminal offense.
The issue under consideration in this advice is whether termination arising from summary dismissal would be considered unlawful in the event of an acquittal and therefore entitles an employee to re-instatement.
The Legal Position on Summary Dismissal
Summary dismissal takes place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. The law allows an employer to summarily dismiss an employee where the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.
Summary Dismissal on Commencement of Criminal Charges
Section 44 (4) (g) of the Employment Act, 2007 provides that summary dismissal shall take place where:
a) an employee commits, or
b) on reasonable and sufficient grounds is suspected to have committed criminal offense against or to the substantial detriment of his employer or his employer’s property.
The employer at this point has latitude to determine if there are reasonable grounds to suspect the employee to have committed a criminal offense.
Section 44 (4) (g) of the Employment Act, 2007 thus raises the point of reasonable suspicion, for instance, after the former employee was implicated by his fellow employees.
Where an employer has such suspicion, reasonable and probable cause is established for pressing charges and prosecution of the former employee. Reasonable and probable cause has been defined in the case of HICKS – vs - FAULKNER  A.C 766 in which the Court held as follows:
“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds of the existence of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the accused was probably guilty of the crime imputed.”
An employer’s belief in the guilt of a former employee can always be demonstrated by their action in carrying out a thorough internal investigation of the former employee’s dealings and reporting of the matter to the police by the employer. Most organisations have their internal mechanisms for conducting such investigations for purposes of ascertaining whether the matter can proceed to another level.
A former employee needs to prove (to the court during the hearing) that, in instigating the prosecution had no other motive other than a desire to bring the (former) employee to justice.
Effect of Acquittal on Dismissal Status
An acquittal in the criminal case does not render a dismissal unlawful. The threshold in a criminal case is different from one in a civil suit. It is noteworthy that in a criminal case, the threshold is that the prosecution is supposed to prove to the Court that the accused is guilty beyond reasonable doubt. It is trite law that a plaintiff is required to prove his case in a civil suit on the balance of probability. In a criminal case, there is no contractual relationship and therefore a former employee cannot seek from the former employer a contractual remedy once the criminal charges against them have been terminated.
It should be noted that under section 44 of the Employment Act the employer has the right to dismiss an employee summarily. In most cases therefore, that Employer can freely exercise his right to dismiss the plaintiff summarily upon completion of its own investigations. However it is important for the employer, in the conduct of its investigations, to accord the concern employee the right to a fair hearing. Failure to accord the employee a chance of hearing during this process of internal investigations offends the rules of natural justice.
Considering, for instance, the past negligence and or gross misconduct of the former employee, an employer would be justified in dismissal.
According to Halsbury’s Laws of England, Gross Misconduct is defined thus:
“Conduct so undermining the trust and confidence inherent in the particular contract of Employment that the Employer should no longer be required to retain the employees.”
Halsburys’ Laws of England Vol.16 (IB) 4th Edition further states as follows on gross misconduct:
“Examples of gross misconduct include theft or fraud, physical violence or bullying, deliberate and serious damage to property, serious misuse of organization’s property or name, deliberately accessing internet sites containing pornographic, offensive or obscene material, serious insubordination unlawful discrimination or harassment, bringing the organization to serious disrepute, serious incapacity at work brought on by alcohol or illegal drugs, causing loss damage or injury through serious negligence, a serious breach of health and safety rules and serious breach of confidence.”
In summary, an employer must to follow due process while exercising summary dismissal discretions. In cases where criminal proceedings have been commenced against the former employee, his reinstatement into employment does not depend on the success or failure of the criminal trial (so long as the Reasonable and Probable Cause test applied), but rather on the good will of the former employer. However, where the employee was on Term Contract which hadn’t expired at the time of commencement of criminal prosecution and the subsequent dismissal, the Court may order for the reinstatement of such an employee, or in the alternative, the payment to him of contractual dues which he would have received had his employment not been terminated.
We trust that the above advice will be useful to you. However, should you have any further queries regarding labour and employment issues in Kenya, please do not hesitate to contact us at firstname.lastname@example.org or on + 254 715 310 677 for clarification.
For: Strategic Legal Solutions Group Limited
Patrick, Teddy & Partners Advocates – a participating Law Firm in the SLS Group of consultancies.