Q. How should an employer fairly dismiss an employee who has been arrested and not released more than 14 days later?
A. Section 44(4)(f) of the Employment Act,2007 enables an employer to summary dismiss an employee’s where, among others;
in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released“
However, the fact that an employee is absent from work on police arrest and detention for up to 14 days does not give the employer the right to dismiss the employee without procedural guarantees given under S. 41 & 45 of the Employment Act.
An employer must hear and consider the employee’s representation on account of gross misconduct since the right to be heard is never discarded! It is mandatory!
Where the employer is not practically able to hear the employee in their defence, the duty is upon the employer to demonstrate the circumstances and the fact.
An employer therefore should take all reasonable measures to afford the employee the opportunity to be heard!
1. Employer should document all attempts at a hearing.
2. It doesn’t matter whether the offense was against the employer or not.
3. The termination must be fair both substantively and procedurally.
4. In the test of fairness, the employer should demonstrate that other options were considered e.g unpaid leave or suspension
Refer to, among others;
- Lawrence Onyango Oduori V Kenya Commercial Bank Ltd  eKLR
- Martin Adongo Sangany V Villa Carr Management Limited  eKLR