Should employees be allowed to have legal representation during disciplinary hearings?

Dennis Nyagaka Ratemo vs Kenya Film Commission & Anor [2014] eKLR

The Claimant was suspected of being involved in an employment offence, suspended, investigated and called to a disciplinary hearing. There was a suggestion the employment offence was deemed grave enough to amount to a criminal offence.?The Claimant was invited to a disciplinary hearing, which he attended on 12th October 2012, but?refused to participate in the deliberations of the Disciplinary Committee mainly on the ground that he should have been allowed to have his Lawyer represent him at the hearing.?The Claimant applied to Court to have the disciplinary process and the police involvement, stopped.

Issues for determination

1.?????Can courts be used to temporarily stop a pending disciplinary hearing?

In determining this issue, the court relied on the decision in the Industrial Court Cause Number 1200 of 2012 between Professor Gitile J. Naituli v. University Council, Multimedia University of Kenya [unreported], that the prerogative of the employer in managing its business and administration of its staff, should not be unduly stifled by judicial intervention through issue of provisional injunctive measures, such those sought by the Claimant. The Employment Act and the Industrial Court Act seek to protect the weaker of the two parties in an employment relationship, not to deprive the employer of the management prerogative altogether.

2.?????Can an employee have legal representation during a disciplinary hearing?

The court noted that?the respondent’s Human Resources Policies and Procedures Manual did not allow or bar,?legal representation of an employee in a disciplinary hearing. The Employment Act ,2007 under?Section 41?suggests only a?Co-employee of the accused employee, or?his shop floor Trade Union Representative,?may be present at the forum where the accused employee is heard. These two persons are not stated to be present to represent the accused employee; they may be there as passive witnesses?to the termination process or as?active representatives. It is left to the employer and the employee to determine what role the two persons play. Disciplinary proceedings are viewed as internal and labour relations exercises, which must be shielded from the incendiary effects of Lawyers. The less the lawyers are involved, the more likely it is presumed, that the employment dispute will be resolved without escalating into a full-blown legal dispute.?

The court determined as follows;

…under certain circumstances, lawyers should?be allowed to actively represent an accused employee at the workplace. There are complex matters that may be raised, such as the matter raised by the Claimant on the information he is said to have leaked to outsiders from his computer, which would require legal representation at the disciplinary proceedings. Employers ought to consider allowing Lawyers to participate in disciplinary proceedings depending on the complexity of the case. There is no significance prejudice which would be occasioned to the employers, in allowing legal representation. Such legal representation may have the effect of improving the overall fairness in the termination procedure; encourage voluntary settlement; minimize the number of disputes escalated to the Industrial Court; and strengthen the employer’s position in demonstrating the fairness of procedure whenever called upon to do so.??

Furthermore, the workplaces are changing. Complex legal issues in Human Resource Management call for a mind shift. The Respondent’s Human Resources Policies and Procedures Manual on Discipline for instance, reads almost like the Employment Act 2007 on termination and dismissal, and there would be considerable value addition in the disciplinary proceedings, by having an accused employee’s Lawyer participate.?

Conclusion

In the view of the above, it is clear that; Courts cannot be used by the employee to stop a disciplinary hearing since it is considered and viewed as an internal process. In certain circumstances, employees can be allowed to have legal representatives.

?