Kenya: Warning letters as a form of disciplinary action

Disciplinary action is considered a reprimand or corrective action in response to an employee’s misconduct or poor performance. There are various types of disciplinary action and for purpose of this article focus will be on written warnings.

A written warning is a formal communication issued to an employee raising the employer’s dissatisfaction with the employee’s conduct and explaining the consequences of continued misconduct. The objective is to correct the unwanted behaviour or improve performance. 

To achieve fairness and transparency it is important for an employer to develop a clear disciplinary policy providing methodological sequence of warnings and consequences applying to all employees. Written warnings form part of the employee’s disciplinary documentation which is suitable for creating a document trail that is used to establish fair administrative procedures against an employee. 

A warning letter should contain the following: 

The Regulations for Wages (General) order under the Labour Institutions Act provides that an employee whose work or conduct is unsatisfactory or who otherwise commits misconduct which, in the opinion of the employer, does not warrant instant dismissal shall be warned in writing and the following criteria shall apply: - 

Issuance of a warning letter requires that an employer takes an employee through a fair hearing process whose outcome resulted to the issuance of a warning letter. A warning letter thus suggests that an employer conducted some form of disciplinary process relating to the allegation outlined in the warning letter.

The court held that the issuance of warning letters, summary dismissal and termination of employment are all forms of disciplinary action that the employer is entitled to pursue at the conclusion of a disciplinary process. A warning is not an interim disciplinary measure but a final one based on the circumstances of the case.

The court observed that warning letters cannot meet the standards expected of a show cause notice primarily because a warning letter by itself is a sanction or penalty after a disciplinary process. A warning letter comes after a formal process.

The disciplinary process alluded to above should be procedural and substantively fair. Substantive fairness refers to the obligation to prove the reasons for issuing the warning are valid and fair.

Section 41 of the Employment Act, 2007 outlines what a fair procedure entail. This section stipulates that, an employer shall, before taking disciplinary action against an employee explain to the employee, in a language the employee understands, the reason for which the employer is considering the disciplinary action and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during the explanation.

 

In light of the foregoing the process to be followed by an employer prior to issuing a warning letter should be as follows:

An employer is thus obliged to consider the relevant labour laws to enhance transparency, fairness and lawfulness in the process of issuing warning letters as a form of disciplinary action. This will in turn help in minimizing the risks associated with financial exposure in form of court damages that are awarded in cases of unlawful disciplinary processes and the related poor corporate image.