Few tasks in managing people are as delicate as discipline. Handled well, it corrects conduct and protects the team. Handled badly, it hands the employee a strong case at the Employment and Labour Relations Court. The difference usually lies in the process, not the outcome.
What does a lawful disciplinary process involve?
Before any sanction, establish the facts and give the employee a genuine opportunity to respond. The Employment Act 2007 requires an employer to explain the reason being considered, in a language the employee understands, and to hear the employee before terminating for misconduct, poor performance or incapacity. The employee is also entitled to have a colleague or union representative present. A workable process looks like this:
- Investigate and gather the relevant records and witness accounts
- Invite the employee in writing, setting out the allegations
- Hold a hearing and record the employee’s explanation
- Decide on a proportionate sanction and communicate it in writing
- Offer a route of appeal within the organisation
Can you dismiss an employee on the spot for misconduct?
Summary dismissal is reserved for gross misconduct that fundamentally breaches the employment relationship. Even then, the employee must be told the reasons and heard before the decision. If the facts are unclear, extend the investigation rather than risk a wrong decision; dismissing without that opportunity is one of the most common procedural failures, and it can convert a sound reason into an unfair termination.
How should the process be documented?
Keep minutes of every hearing, copies of every warning, and the letters that opened and closed the process. Documentation is what the ELRC will read first if the employee later claims unfair termination, and consistent records also protect the employer where several employees face similar allegations. Disciplinary procedures belong in your written policies so managers apply the same standard each time, and queries from a labour officer are easier to answer from a complete file.
Where does external support fit?
Where a dispute has already escalated, mediation or a negotiated exit can be more efficient than litigation; our dispute resolution practice assists with both. For the preventive side, we help boards and HR directors design disciplinary frameworks that match their governance structures.
This article was written by Charles Muriu Mathenge, who advises businesses, HR directors and boards on corporate and commercial matters at CS Advocates LLP.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.