A ruling by the Employment and Labor Relations Court has affirmed that employers in Kenya can lawfully dismiss employees through internal disciplinary processes, even in the absence of criminal prosecution.
The decision, delivered in Mombasa, clarifies a key question in labor relations: whether an employee must first be charged or convicted of a crime before being dismissed for misconduct linked to alleged criminal acts.
The court firmly answered in the negative, saying internal disciplinary mechanisms are sufficient as long as due process is followed.
The case involved a long-serving employee who had worked for over a decade as a technician.
He was dismissed after security officers found electronic spare parts in his bag at the end of his shift.
The employee denied wrongdoing, insisting that the items were not his and that he was unaware of how they ended up in his bag.
He was arrested and investigated by police, but prosecutors later declined to press charges, citing a lack of evidence.
The employer proceeded with disciplinary action and eventually dismissed him for gross misconduct.
Internal Process Matters
In its judgment, the court found that the employer had followed the required legal procedure before reaching the decision to dismiss.
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The worker had been issued with a notice to show cause, given time to respond, and invited to a disciplinary hearing where he was allowed representation
Furthermore, the court noted that these steps met the requirements set out under the Employment Act, which demands that an employee be given a fair hearing before termination.
The ruling stated that procedural fairness is central in determining whether a dismissal is lawful.
Crucially, the judge held that criminal proceedings and workplace disciplinary processes operate independently.
“Criminal proceedings are distinct from internal disciplinary processes, and pendency of the criminal case was not a reason for the employer to refuse to take the employee(s) through the internal disciplinary procedures,” the court stated.
An employer does not need to wait for the outcome of a criminal case, or even for charges to be filed, before taking action against an employee.
Instead, the standard applied in employment matters is based on a balance of probabilities, not the higher threshold required in criminal law.
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This means that an employer only needs to show that it had a genuine and reasonable belief that misconduct occurred.
Employer – Employee Trust
The court further pointed out that employment relationships are built on trust and confidence.
“Breach of trust and confidence by the employer against the employee goes to the heart of an employment relationship,” the court added.
Where that trust is broken, an employer is entitled to terminate the relationship, especially in cases involving suspected dishonesty.
In this case, the presence of company property in the employee’s bag, together with internal investigations and stock records, was sufficient to justify the employer’s belief that misconduct had occurred.
The court also considered the employee’s prior disciplinary record, noting that earlier warnings for misconduct reinforced the employer’s decision.
This history weighed against the employee in assessing whether the dismissal was fair.
Claims for compensation, notice pay, and damages were rejected.
The worker had also argued that he suffered mental distress following his arrest, but the court ruled that any harm arising from police action could not be attributed to the employer, which had merely reported the matter.
Ultimately, the court dismissed the claim in its entirety and upheld the termination as lawful and justified, awarding costs to the employer.
