A common dilemma that many employers are facing is how to handle workers who leave without notification or permission only to come back months later to claim their jobs back or ask for terminal dues.
Some of these employees claim that the employer sacked them verbally and did not pay their terminal dues.
As an employer, to be on the safe side, you must know what the law provides on termination of employment and on an employee who fails to report to work without permission or other lawful cause.
Section 35 of the Employment Act, 2007 provides that either the employer or employee must give notice of intention to terminate employment to the other party.
Section 36 provides for payment of equivalent salary in lieu of notice instead of serving the notice. The length of notice will depend on the interval at which salary is paid.
Where the contract states that employee is paid daily wages as is the case of a casual worker, the employment can be terminated at the end of the day without notice.
This is because all casual employment ends at the end of the day. Each day is thus a new contract.
Where payment is made weekly, the notice is one week or payment of one week’s salary in lieu, and where payment is made every two weeks then notice must be for the same period.
An employee paid monthly must give or is entitled to one month’s notice or equivalent salary in lieu of notice.
An employee is expected to give notice before leaving employment.
However, sometimes employees just fail to report to work the next day and leave it to the employer to decide how to deal with the absence.
Absence without permission is a ground for summary dismissal under section 44 of the Employment Act.
Some of the employees who leave employment without permission expect their employers to dismiss them under this section.
Many employers, however, just do nothing and forget about the employee hoping that since s/he has abandoned work, it is his/her problem.
But after a few months or years, when the employee comes to demand their job back or terminal benefits and sometimes compensation for wrongful termination or dismissal, the employers find themselves in a dilemma.
How should an employer handle such a situation?
It is recommended that every employer takes action to bring employment to an end even in the case where it is the employee who has walked out of his job.
The first step is to put in place rules stating what you expect employees to do when they are not able to report to work.
The rules should state how long an employee can be away before being deemed to have breached the contract.
Section 44 of the Employment Act states at sub section (3) that “Subject to the provisions of this Act, an employer may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.”
The employer should then send a letter to the employee to report to work within a specified date failure to which the employee will be deemed to have breached the employment contract by abandoning work.
If the employee reports as directed, he should be asked to explain why he should not be dismissed from employment for being absent without permission.
The letter usually referred to as notice to show cause or simply as a show cause letter, should give the employee a time frame within which to respond.
Failure to respond
Should the employee fail to respond, the employer should proceed to write a dismissal letter to the employer citing the absence without permission and failure to respond to the show cause letter.
If the employee responds, but does not give sufficient cause the employer should arrange for a hearing to enable him explain.
The employee should be informed of the right to be accompanied by a colleague or union official to the hearing.
It is after such hearing that the employer should decide whether or not the employee has failed to show sufficient cause to warrant dismissal.
This is provided for in section 41 of the Act.
Where the employer is sure that an employee has abandoned his job and is working elsewhere, but has not resigned by giving notice or pay in lieu of notice, the company may write to them demanding payment in lieu of notice.
Employers are advised to always take action to avoid exposing the organisation to claims of unfair termination or dismissal by ensuring that the record of an employee who has absconded duty is not left hanging in the balance.
Always have a record that the employment has ended.
Mrs Mugo is the executive director of the Federation of Kenya Employers. E-mail [email protected]