Disciplinary Due Process In Employment: Procedural Fairness, Timeliness, And Evidentiary Rights in Focus

A Procedural Disciplinary Process

Picture by Freepik

Under Section 41 of the Employment Act, 2007, an employer must first explain to the employee, in a language they understand, the reason for the contemplated termination. During this explanation, the employee is entitled to have another employee or a shop floor union representative of their choice present. Furthermore, the employer must hear and consider any representations the employee, and their chosen representative, if any, may make regarding the grounds for misconduct or poor performance before proceeding with termination or summary dismissal. The employee undergoing the disciplinary process is also entitled to appeal the decision of the disciplinary committee and can ask to be furnished with the minutes of the disciplinary hearing. This process proceeds warnings, notices and a show cause letter indicating the specific reason for the contemplated termination.

In the case of Mbogo v Harleys Limited [2025] eKLR, the Claimant, was initially hired as a warehouse supervisor on a casual basis, with his employment later converted to permanent on July 5, 2016. He earned a monthly salary of Kshs.17,114/=. His termination stemmed from an incident on August 16, 2016, when pharmaceutical drugs worth over Ksh.1M were reported missing from the warehouse under his care. The claimant and his colleagues were arrested and detained by the police, though investigations later found him innocent and no charges were preferred. Upon his return to work, the Respondent, issued a termination letter, stating his services were no longer required, and verbally informed him there was no work. The respondent contended that the claimant and other staff could not explain the loss or poor record-keeping, leading them to terminate employment to mitigate losses.

The Court found that the disciplinary process was fundamentally flawed. It noted that the Respondent failed to supply the Claimant with critical documents pursuant to article 35 of the Constitution of Kenya, denied her a meaningful chance to face her accusers, and subjected her to inordinate delays during interdiction and appeal. These lapses rendered the termination both substantively and procedurally unfair. The Court awarded Yego twelve months’ salary in compensation, emphasizing that prolonged and poorly managed disciplinary processes violate the statutory safeguards of the Employment Act.

Similarly, In Kamundia v National Cement Company Limited [2025] eKLR, the Court found that the disciplinary process was defective because the termination letter cited a new and serious allegation, a fatal incident at the Samburu plant, that had not been part of the earlier show cause notice or disciplinary hearing, thereby ambushing the claimant in violation of Sections 41, 43, and 45 of the Employment Act. Nonetheless, the Court also established that the claimant was guilty of gross misconduct through repeated unauthorised absences, which could have justified summary dismissal.

As a result, while the termination was procedurally unfair, the Court declined to grant compensation, noting that to do so would amount to rewarding gross misconduct, in line with established judicial precedent.

Prolonged Disciplinary Process

The Employment Act, 2007, requires employers to ensure that both substantive and procedural fairness are observed in termination processes. Sections 41 and 45 specifically mandate that an employee must be informed of charges against them, provided sufficient time and documentation to prepare a defence, and subjected to a fair hearing within a reasonable timeframe. Prolonged disciplinary processes such as excessive interdiction periods or delayed appeal determinations undermine fairness and can amount to constructive injustice, even where there may be a valid reason for termination.

In Yego v Kenya Post Office Savings Bank [2025] eKLR, the Claimant, joined the Bank in 2005 and rose to the role of Assistant Operations Officer. In September 2016, she was interdicted on half pay over alleged operational irregularities involving adjustments to credit limits. A year later, in September 2017, she was terminated for gross misconduct, with the Respondent citing losses of over Kshs.22M. Yego denied wrongdoing, maintaining that she acted under her superiors’ instructions and was never availed the investigation report to defend herself. She further complained of being kept on interdiction for a year and that her appeal was only resolved two years later.

The Court found that the disciplinary process was fundamentally flawed. It noted that the Respondent failed to supply the Claimant with critical documents pursuant to article 35 of the Constitution of Kenya, denied her a meaningful chance to face her accusers, and subjected her to inordinate delays during interdiction and appeal. These lapses rendered the termination both substantively and procedurally unfair. The Court awarded Yego twelve months’ salary in compensation, emphasising that prolonged and poorly managed disciplinary processes violate the statutory safeguards of the Employment Act.

Confidentiality in Disciplinary Hearings

The Employment Act, 2007 underscores fairness and transparency in disciplinary proceedings under Section 41 that employees be informed of allegations, allowed adequate opportunity to respond, and permitted representation. While confidentiality in sensitive cases such as sexual harassment allegations is important, it cannot override the accused employee’s right to know the evidence against them and to face their accusers. Confidentiality must therefore be balanced with natural justice, ensuring that employees are not condemned based on undisclosed testimony or hearsay.

In Kimani v Rosslyn Academy [2025] eKLR, the Claimant, had worked for the school for 21 years, most recently as Transport Supervisor, before being accused of sexual misconduct. He argued that the disciplinary process was unfair because the complainants and corroborating witnesses were not presented in his presence, their statements were withheld, and the hearing relied on undisclosed testimony. He further claimed that the process was a cover-up since his position had already been advertised before his termination. The Respondent countered that it had acted lawfully, investigated the complaints confidentially in line with its sexual harassment policy, and accorded the Claimant a fair hearing, even allowing him to attend with witnesses.

The Court found that while the Respondent had a valid reason to terminate Kimani, the disciplinary process was procedurally flawed. The Claimant was denied access to key documents and the opportunity to face or cross-examine his accusers, which undermined his right to a fair hearing. The Court held that confidentiality in such cases should not extend to withholding material evidence from the accused employee. Consequently, the Court awarded the Claimant three months’ gross salary as compensation for the procedural unfairness, though it declined to award general damages for slander.

Similarly, the Employment and Labour Relations Court In Kibiro v Ole Sereni [2025] eKLR, held that the Claimant, had been constructively dismissed. Kibiro, who served as the Respondent’s Human Resource Manager, resigned after being subjected to a flawed disciplinary process arising from anonymous sexual harassment complaints. The Court found that he was denied key documents, referred improperly to the employer’s counsel for information, and not accorded a fair opportunity to confront his accusers, contrary to Section 41 of the Employment Act and the Fair Administrative Action Act. Justice Hellen Wasilwa ruled that these procedural lapses created an intolerable work environment, effectively forcing Kibiro’s resignation, which amounted to constructive termination. The Court awarded him Kshs. 5,416,000 comprising six months’ compensation, service pay, and two months’ salary in lieu of notice, plus costs and interest.

Written by Cynthia Seeyian and Eric Kivuva

This article is for informational purposes only and does not constitute legal advice. For tailored guidance or support in navigating this transition, please contact us at advisory@mckayadvocates.com