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Society

What to consider before interdicting an employee

Punitive interdiction
Punitive interdiction arises where allegations of misconduct have been proven and the employee is found guilty. PHOTO | FOTOSEARCH 

There are a number of questions that arise around the subject of suspension and interdiction. Chief among them is whether there can be a lawful interdiction and the answer to this question is an emphatic yes.

Interdiction is a term mainly used in the public service to refer to a period when an employee or an officer is temporarily removed or relived from his or her duties pending investigations and or disciplinary action. To private sector employers, interdiction may be the equivalent of suspension as they more often than not tend to serve the same purpose. There are two categories of interdiction; preventive interdiction and punitive interdiction.

The first arises when the employer is yet to prove the alleged misconduct and the matter is pending investigation. It helps to prevent the employee from interfering with the investigation process by virtue of their position.

Punitive interdiction arises where allegations of misconduct have been proven and the employee is found guilty. It is meant to punish the employee for the said misconduct. However, during the period of interdiction the employee is entitled to half salary. The employer may withhold the other half but upon clearance and or where no misconduct is proven, the employer must refund to the employee in full the accrued salary and allowances withheld during the period of interdiction.

Interdiction or suspension does not take away the right of an employee. The law requires that substantive and procedural fairness be adhered to. The court held in Fredrick Saundu -vs- Principal, Namanga Mixed Secondary School, that suspension and interdiction are not administrative acts as the detrimental effect of it impacts on the employee’s reputation ,advancement , j ob security and fulfilment.

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The court went further to pronounce itself on what would constitute a lawful interdiction. In so doing, it noted that before an interdiction can be found to be valid, it must be based on fair reasons and must be implemented pursuant to fair procedure.

From the foregoing, a lawful interdiction would be one where ;(a) the employer has justifiable reasons to believe that the employee has engaged in serious misconduct to form what is called a prima facie case, (b) that there be some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct ,or some relevant factor that would place the investigation or interest of the affected parties in jeopardy, (c) that the employee be given the opportunity to state his case or be heard before any final decision to interdict is made.

REINSTATEMENT

If upon the conclusion of a workplace investigation the employee is found not to have engaged in the alleged misconduct, the employer may reinstate or release him. But reinstatement is not an automatic right of an employee— it is discretionary and each case has to be considered on its merit based on the spirit of fairness and justice. This arises from the traditional common law position that courts will not force parties in a personal relationship to continue against the will of one of them as it would generate friction which is not good for business.

Is an employer obliged to reinstate a worker found innocent in a criminal trial?

Disciplinary process is not tied to criminal process that may arise from the same facts. An employer is not obliged to follow police investigations, findings or even criminal court decisions in solving employment disputes.

The reason for this is twofold. First, to base a disciplinary process on the outcome of a criminal trial would be risky as the employer has no control over the criminal proceeding and secondly, that an employees who has an assurance that their fate lies with the criminal proceeding would usually be reluctant to cooperate with any disciplinary process that the employer may initiate.

An acquittal in a criminal case does not render an employee immune to disciplinary proceedings initiated by an employer. The reason being that criminal proceedings and internal disciplinary proceedings are two distinct processes with different procedural and standard of proof requirements.

Prolonged period of interdiction or suspension, say for more than one year, would essentially amount to constructive termination if the employee elects to resign as a consequence.

The writer is Associate, Simiyu Wekesa Advocates.

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