AN EMPLOYEE ADMITTING TO GROSS MISCONDUCT IS SUFFICIENT EVIDENCE TO SUPPORT TERMINATION
James WaNjeri - Employment Lawyer
What is the standard of proof an employer has in employment disciplinary proceedings?
The term standard of proof is often used alongside the term burden of proof. The burden of proof is the responsibility or task of proving that you are correct or right. The standard of proof refers to how much evidence is required to prove that you are right. In criminal law, the burden of proof is often beyond a reasonable doubt. In civil cases, the standard is on a balance of probabilities, simply meaning that based on the evidence, it is "more likely than not" that something happened as it is being claimed.
Recently, the Employment Court gave guidance on the required standard of proof for employers when terminating employees for gross misconduct. When handling disciplinary proceedings, Section 45 of the Employment Act, requires that an employer proves that the reasons for termination are valid and fair. Further, Section 43(2) specifically states that the reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.
The Court is then meant to look at the evidence provided and determine if the standard of proof required to support the employer’s belief has been met.
The Court is a neutral arbiter and is not expected to enter into the arena of the dispute and attempt to substitute the employer's views with its own views. This approach is frowned upon, and it often leads to great injustice. When judging an employer’s action, courts have developed a test known as the range of reasonable responses test. In many cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take a different view.
The function of the Court is to determine whether, in the specific circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses that a reasonable employer might have adopted. In determining an employment dispute, the Court is not expected to supplant its own decision with the employer's. In other words, the Court does not ask what it would have done in the circumstances of the particular case; all the Court asks is whether, overall, the employer acted responsibly and reasonably, and if the answer to this question is in the affirmative, the Court should then not interfere with the employer’s decision.
The Employment and Labour Relations Court At Kisumu, in Appeal No E008 Of 2023 Simba Corporation T/A Acacia Premier Hotel Vs William Oguta dealt with this very question. This appeal was filed by the employer challenging the decision of the Lower Court made in favour of the employee. In a judgment delivered on 6th January 2023, the Trial Court found the Employee’s termination unfair and awarded him the equivalent of 6 months’ salary as compensation, 12 months’ salary as damages for loss of employment and 1 month's salary in lieu of notice.
The events leading to the termination were as follows: The employer conducted investigations, which found that while on duty, the employee served two guests and was paid for items worth Kshs 2,200 and Kshs. 2,050, respectively, but he used the previous day's MPESA codes to settle the transactions and thereby pocketed the money paid in cash. The employee, therefore, engaged in a false representation of a fact with the intention to defraud the employer by intentionally using previous Mpesa transaction codes to clear bills that he had been paid in cash by the customers.
He was issued with a show cause letter, and he failed to satisfactorily respond to the charges. After that, he was invited to a disciplinary hearing on 22nd October, 2020, informed of the charges he was accused of, and further informed of his right to have a fellow employee of his choice present during the disciplinary hearing. He attended the hearing in the company of four (4) representatives, three (3) from the union and one fellow employee.
On his part, the employee's case was that the decision to dismiss him from employment was unlawful, unfair, illegal and irregular. He submitted that he was a cashier, and the codes for the bills were issued to him by the waiters who collected the bills from the customers, and it was not possible for him to tell what dates the codes supplied to him by the waiters related to, hence if anyone was to blame for the delay in submitting the codes, then it should be the waiters concerned.
In his view, the Trial Court was right in finding that his role was limited to receiving bills from the waiters who picked them from customers. Further, the Chief accountant’s report that formed the basis for disciplinary action against him was not availed in Court, nor was the Accountant called to testify and corroborate the allegations by the Appellant. He submitted that in the absence of the report by the accountant, all allegations levelled against him were nothing but hearsay.
The Trial Court found the termination of the employee was unfair on the basis that firstly, the employer failed to establish the basis for the dismissal, the proceedings of the administrative appeal were not produced in evidence before the court and that in whole, the employer did not adhere to the provisions of Sections 41, 43, 45 and 47 of the Employment Act.
Court’s Determination
The Employment Court sitting as an Appeal Court found that serving a show cause letter to the employee, inviting him to an oral hearing, and giving him the right to call witnesses, produce documents, and be represented by another employee at the hearing constituted fair procedure. The employer did this in this case, and the process was fair.
On whether there were proper reasons, the employer argued that it dismissed the employee for willfully using Mpesa payment codes to account for/close bills paid through cash and proceeded to keep the money received from the customers. This, it argued further, was a genuine reason to terminate him. The Court noted that the security report produced in evidence indicated that the employee admitted to the allegations levelled against him. Further, minutes of the disciplinary hearing carried excerpts of the discussions where the employee admitted to the charges and sought forgiveness.
First, the Court made a finding that the acts and omissions of the employee no doubt caused the employer losses, which led the Judge to conclude that “the reasons for the dismissal fell within the band of reasonable responses, which would cause a reasonable employer to dismiss an employee.” This was sufficient evidence that, indeed, the employer had good reasons to take disciplinary action. The appeal by the employer was successful, and the decision of the Trial Court was set aside.
The court also found that the Trial Court made an award not known under the Employment Act when it awarded the employee damages for loss of employment. In the Court’s view, “Damages for loss of employment is not a remedy known to Section 49 of the Employment Act. To award this claim, therefore, is tantamount to unjustly enriching the Respondent.”
(This decision was issued on 6th March 2024 by Justice Christine N. Baari, sitting in Kisumu. The Trial Court judgment was issued on 6th January 2023.)
Conclusion
This was a good case since the judgment of the Trial Court deserved to be appealed against. The verdict was unjust towards the employer, especially considering that the employee had already admitted to the misconduct. Making additional demands on the employer and requiring that more witnesses be provided was unnecessary under those circumstances. For employers, the employment case is won during the internal disciplinary process. It is critical to ensure that you have a system and process that meets the requirements under the law.
For the employee, admitting to an employment offence and then seeking forgiveness means you cannot backtrack and question whether your employer had a good reason to terminate the contract. Admissions are sufficient to establish wrongdoing. Your only respite is on whether the proper process was followed or if the admission was illegally obtained.
Finally, to answer our question on the standard of proof in employment matters, here the Trial Court took the wrong view and arrived at the wrong decision. It is the law in Kenya that when dealing with employment cases, “It is improper for a court to expect that an employer would have to undertake a near forensic examination of the facts and seek proof beyond reasonable doubt as in a criminal trial before it can take appropriate action subject to the requirements of procedural fairness that are statutorily required. The standard of proof is on a balance of probability, not beyond reasonable doubt, and all the employer is required to prove are the reasons that it "genuinely believed to exist," causing it to terminate the employee's services."
When a case is deemed to have good grounds for appeal, it is advisable to pursue an appeal.
Expert legal advice is often the difference-maker in employment cases. We advise clients on employment matters; contact us at legal@jnadvocates.com
The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
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Argwings Kodhek Rd. Nairobi, Kenya
Tel: 0719494083
Email: legal@jnadvocates.com