Employers are often confronted with unexpected challenges, and perhaps one of the most complicated situations is when an employee commits a criminal offense. The delicate balance between protecting the employment rights of the individual and safeguarding the integrity of the workplace can leave employers unsure of the next course of action.
Perhaps one of the most common criminal offences committed by employees is theft and fraud. This may often involve misappropriation of company funds, embezzlement, or manipulation of financial records for personal gain. When criminal offences do occur at the workplace, it is recommended that employers report them to the relevant legal authorities.
The court’s position on the process of termination of an employee who has committed an offence
Section 41 of the Employment Act, 2007 provides for the process of termination where there are grounds of misconduct by the Employee. In Machanga Mwachanya vs Operation 680 Limited [2013] eKLR, Radido, J. summarized the principles in section 41 as follows;
a) That the employer has explained to the employee in a language the employee understands the reasons why termination is being considered;
b) That the employer has allowed a representative of the employee being either a fellow employee or a shop floor representative to be present during the explanation.
c) That the employer has heard and considered any explanations by the employee or their representative;
d) Where the employer has more than 50 employees, it has complied with its own internal disciplinary procedural rules.
It is now trite law that the procedure provided for under section 41 of the Act is mandatory and must be followed by employers even in instances where an employee is accused or suspected of committing a criminal offence i.e. stealing.
In the case of Fredrick Saundu Amolo suing through the Executive Secretary KUPPET Kajiado County Branch –V- Principal Namanga Mixed Day Secondary School & 2 Others (2014) eKLR Mbaru, J. observed as follows;
“…… First, the employer must have a justifiable reason to believe the employee has engaged in serious misconduct to form what is commonly called a prima-facie case, Secondly, there is some objectively justifiable reason to deny the employee access to the work place based on the integrity of any pending investigation into the alleged misconduct, or some relevant factor that would place the investigation or the interest of the affected parties in jeopardy; and Thirdly, the employee is given the opportunity to state his case or be heard before any final decision to interdict”.
Based on the case above, the general steps that employers may take include
- Preliminary Investigation
Conduct a preliminary investigation into the alleged criminal offence. This process may involve gathering evidence, interviewing relevant parties, consulting and reporting to law enforcement authorities where necessary.
- Notice to the Employee
Once preliminary investigations have been carried out and there are reasonable grounds to believe that an employee has committed a criminal offense, the Employer will be required to give the employee written notice of the alleged offence and outline any steps the Employer intends to take.
- Suspension
Depending on the severity of the allegations, the Employer may consider suspending the employee with full pay to conduct further investigation. The suspension period must be objective and enforced in order to protect the integrity of investigations and ensure a fair process.
- Disciplinary Hearing
On conclusion of all relevant investigation, an employer will be required to issue the employee with a notice to attend the disciplinary hearing. The notice should indicate the time and place of the hearing and give the employee an opportunity to submit their written response. In addition, the employee should be provided with any reports/or supporting evidence which may have been discovered during investigations. This is to give the employee an opportunity to prepare their response and call in either a fellow employee or a representative in support of their case.
- Decision Making
After the employer has reviewed all the evidence and has heard and considered any explanations by the employee or their representative, they can then proceed to make an informed decision on whether to terminate the employee. Where the employer opts to proceed with termination, he/she must ensure that such decision and the reasons for termination have been communicated and explained to the employee in a language the employee understands.
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Disclaimer
This article is for informational purposes only and should not be construed as legal advice.
