Innocent Request or Poisoned Chalice-Handling Certain Employee Requests

Introduction

Disciplinary proceedings are a sensitive process for both an employer and an employee. However, the conduct and decisions of an employer in this process are consequential and will no doubt be viewed under a magnifying glass.

There are instances where an employee may make a request in a disciplinary process which falls outside the scope of the express provisions of the Employment Act Cap. 227 (the Act) or the terms of a company’s internal HR and Disciplinary policies. One such example is when an employee requests to attend a Disciplinary Hearing with an external witness or legal representative.

The employment Courts have held that there are instances when an employee may be allowed to attend a Disciplinary Hearing with an external witness or legal representative of their choice. Therefore, granting or not granting such a request may be the razor-thin margin in which an employer may or may not be held liable by an employment Court for conducting the disciplinary process in a procedurally unfair manner.

When confronted with such a request, an employer should consider the following guidelines provided by the employment Courts.

When Can an Employee Attend a Disciplinary Hearing with an External Witness?

In Nairobi Seii v LVCT Health Nairobi Cause 1452 of 2017) [2024] the Court considered whether an employee ought to be allowed to attend a Disciplinary Hearing with an external witness and held as below:

  1. The law doesn’t prohibit the calling of external witnesses on the basis that the entire purpose of a Hearing is to allow an employee who is allegedly guilty of misconduct, a chance to defend himself/herself against the accusations. As such, the accused employee must be accorded the opportunity to lead evidence and call witness[es] in defence of the charges.
  2. There is a difference between the accompanying person [a colleague or trade union representative as the case may be] contemplated under Section 41 of the Act and a person that an employee may wish to call as a witness to give evidence in support of his or her defence against the employer’s accusations.
  3. The accompanying person contemplated under Section 41 of the Act is in character a representative. The representative will be afforded the opportunity to make representations on behalf of the employee and to cross-examine evidence and documents presented by the employer.
  4. In the legal labour relations regime, where the applicability of the tenets of natural justice have been onboarded into employment contracts, and employment and labour rights are constitutionally spirited, there cannot be room for employers to segregate witnesses that an employee would want to call in support of their defence in a Disciplinary Hearing.
  5. An employee should be given full liberty to choose and avail a witness [es] whom he/she feels will best fortify their defence. Any segregation of witnesses may lead to the unfortunate consequence, of erosion of an employee’s constitutional right to a fair hearing under Article 50 (Fair Hearing) of the Constitution of Kenya 2010.
When Can an Employee Attend a Disciplinary Hearing with a Legal Representative?

The Employment Court in Nairobi Ratemo v Kenya Film Commission & Another (Cause 2192 of 2012) [2014] KEIC 3 (KLR) (3 February 2014) (Ruling) and the South African Supreme Court Case of Max Hamata & Anor v Chairperson, Peninsula Technikon International Disciplinary Committee & 3 Ors Case No. 384 of 2000, held that an employee may be entitled to attend a Disciplinary Hearing with a legal representative subject to the following key considerations:

  1. The complex nature of the allegations raised against the employee;
  2. The factual and/or legal complexity of the matter;
  3. The grave consequence of any adverse finding;
  4. Allowing the request shall enhance the procedural fairness of the Disciplinary process; and
  5. Any other compelling reasons depending on the circumstances of the case.
Conclusion

Any request by an employee to attend a Disciplinary Hearing with an external witness or legal representative ought not be outrightly denied. However, different thresholds apply to each request. There is a lower threshold for granting an employee’s request to attend a Disciplinary Hearing with external witness[es]. On the other hand, there is no automatic entitlement to legal representation in Disciplinary proceedings. As such, the onus is on the employee to demonstrate what compelling reasons require the exercise of the employer’s discretion in allowing him to attend a Disciplinary Hearing with a legal representative. In either circumstance, it is advisable to seek legal advice on whether to grant a request concerning an external witness or a legal representative.

Disclaimer: The information contained in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. While the information is accurate as at date hereof, there can be no guarantee that the information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation.