ER Presentation: Key Excerpts in legal Documents

1. Legal Framework of Employment
2. Key Excerpts of Legal and policy documents
i. Public Service Standards
ii. General Orders
iii. Directive No 2 on Delegated authority
iv. Transfer queries
v. Legitimate Expectation
3. Rules of Natural Justice
4. Investigation Process
5. Disciplinary Hearing Process
6. Roles of Members of a Disciplinary Hearing panel
7. Termination of Employment
i. Repudiation of contracts
8. Dismissal Appeals
9. Dispute Resolution Structures
10. Disputes of Interest and Disputes of Rights

 PUBLIC SERVICE ACT
 EMPLOYMENT ACT
 TRADE DISPUTE ACT
 GENERAL ORDER

 Section 5 (3) of Public Service Act
All persons who were employed in terms of the Public Service Act, the
Regulations for Industrial Employees, the Teaching Services Act, the
Tribal Land Act and the Unified Local Government Service Act
immediately before the commencement of this Act shall, except where
it is clearly inappropriate, be deemed to have been employed under
this Act and the provisions of this Act shall apply to them.

A person who was employed in terms of the Public Service Act, the
Regulations for Industrial Employees, the teaching Service Act, the
Tribal Land Act or the Unified Local Government Service Act
immediately before the commencement of this Act shall not be subject
to any condition of service which is less favourable to him or her than
any similar condition which applied to him or her before this Act came
into force.

Notwithstanding the provisions of subsection (4), any person who was
employed in terms of the Acts and Regulations referred to in sub-
sections (1) to (4) immediately before the coming into force of this Act
shall not-
(a) Publicly speak or demonstrate for or against any politician or
political party
(b) Be an active member of, nor hold office in, any political party
(c) Publish his or her views on political matters in writing
(d) Hold a parliamentary seat or hold a political office in any local
government body, except where the office is held ex officio

 In addition to the principles set out in the National Vision, in the
Public Service Charter and any other code of conduct for public
officers, every public officer shall:
(a) Provide effective and efficient service to the public and to
Government and endeavor to give their best to meet performances
standards and other organizational requirements
(b) Utilize Government resources at their disposal in an efficient,
responsible and accountable manner
(c) Continuously improve their performance in delivering services

 Section 16 (1) of Employment Act
 Every employer shall, unless the employee has broken his contract
of employment becomes, without default on the part of the employer,
impossible of performance, provide his employee with work in
accordance with the contract is binding on a number of days equal
to the number of working days provided for, either expressly or by
implication, in the contract of employment.

 Section 15 (1) of Public Service
Act
Subject to the Constitution, the power to appoint, remove or exercise
disciplinary control over any employee shall be vested
(a) In the case of any employee in a senior management position ( other
than a person appointed by the President in terms of the
Constitution or any other law), in the Permanent Secretary to the
President.
(b) In any other case, in the director or such other person as the
Director may, in accordance with this Act, delegate. (Public Service
Management Directive No. 2 of 2011.

 Section 18 of Public Service Act
A person who has been convicted of an offence involving moral
turpitude, or who has been dismissed from the public service shall not
be appointed to any public office without the written approval of the
Director or Permanent Secretary to the President as the case maybe, for
positions which they appoint for.

 Section 26 (1) and 28 (1) of Public
Service Act
 An employee’s appointment shall terminate on the:
(a) employee’s resignation
(b) Expiry of the employee’s contract
(c) Employee’s retirement
(d) Abolition of the employee’s office
(e) Employee’s dismissal
(f) Employee’s death
 In this section,“employee” means a public officer subject to
permanent and pensionable terms of service

 Section 39 (1)and (2) and 50 (1) of
Public Service Act
 Disciplinary action against an employee who commits an act of
misconduct shall be prompt and in accordance with the rules of
natural justice.
 The procedure to be followed in respect of a disciplinary action shall
be as agreed by collective bargaining
 A bargaining council for the public service, to be known as the
Public Service Bargaining Council hereinafter referred to as “the
Council”, shall be established and registered in terms of this Part.

 Section 40 of Public Service Act
 Punishments that can be imposed under this Act in respect of
misconduct:
(a) A reprimand
(b) Stoppage of increment
(c) Deferment of increment
(d) Reduction of salary
(e) Demotion
(f) Suspension from duty with pay for a period not exceeding one
month
(g) Dismissal

 For the purpose of this section the term “serious misconduct” shall ,
without prejudice to its general meaning, include or be deemed to
include the following:
(a) Wilful disobedience of lawful and / or reasonable orders given by
the employer.
(b) Wilful, express or implied, misrepresentation by the employee in
respect of his skills or qualifications.
(c) Habitual or wilful neglect of duties
(d) Acts of theft, misappropriation or wilful dishonesty against the
employer, another employee, or a customer or client of the employer
(e) Acts of violence
(f) Damage caused wilfully or by gross negligence to movable or
immovable property of the employer

Act
 An employee’s salary shall not be withheld during the period of his
or her suspension.

 Section 80 (1) (d) of Employment
Act
 Make deductions from the wages and any other payments which
may be due to the employee
(a) In respect of unauthorized absence from work
(b) In respect of the actual cost of meals, or so much of the actual cost of
meals as is not subsidized by the employer at the request of the
employee
(c) In respect of such amenities and services supplied by the employer
as may be authorized by the Commissioner
(d) In order to recover any overpayment of wages
- provided that no deductions shall be made for this purpose unless
the deductions are made in such a manner as will cause no undue
hardship to the employee.

 Section 80 (1) (d) of Employment
Act
(e) In respect of contributions payable by the employee by virtue of
any legislation which may for the time being be in force establishing a
national provident fund.
(f) In order to recover any basic pay which may have been paid to an
employee in respect of annual leave granted by the employer before
the completion of the period by virtue of which that leave would have
been earned
(f) For any other purpose which may be approved by the Minister

Act
 An employee who has a grievance against the employer may refer
the grievance either to the Public Service Commission established
under section 109 of the Constitution, hereinafter referred to as “the
Commission”, or to the Public Service Bargaining Council
established in terms of section 56, for mediation or arbitration.

 The employer shall be deemed to be in breach of a contract of
employment if he is absent from work without the prior consent of
his employer or his employer’s representative unless he has
reasonable cause for such absence and, as soon as it is reasonably
practicable to do so, informs his employer or his employer’s
representative of that cause.

 Section 23 of Employment Act
 notwithstanding anything contained in a contract of employment, an
employer shall not terminate the contract of employment on the ground of:
(a) The employee’s membership of a registered trade union or participation in
any activities connected with a registered trade union outside working hours or,
with that consent of the employer, within working hours.
(b) The employee seeking office as or acting or having acted in the capacity of
an employees’ representative.
(c) The employee making, in good faith, a complaint or participation in
proceedings against the employer involving the alleged violation of any law.
(d) The employee’s race, tribe, place of origin, national extraction, social origin,
marital status, political opinions, sex, colour or creed.

EMPLOYEE
 Any person who has entered into or works under a contract of service with an
employer, whether the contract is for manual labour, clerical work or
otherwise, is expressed or implied. Or is entered into orally or in writing, and
whether it is a contract of service or apprenticeship or learnership or a contract
personally to execute any work or labour.
 For which the rendering of the service will ordinarily attract some form of
reward, typically in monitory value or some form of agreed reward.
 Takes the form of a quid pro quo exchange relationship

EMPLOYER
 A legal entity that controls and directs a servant or worker under an express or
implied contract of employment and pays (or is obligated to pay) him or her salary or
wages in compensation.

DEFINITION OF DISPUTE
 An argument or disagreement, especially an official one between, for example, workers
and employers or two countries with a common border.

INDUSTRIAL RELATIONS ACT
CODE OF GOOD PRACTICE: RESOLUTION OF DISPUTES AT THE WORKPLACE
This code is published in terms of Section 109 of the Industrial
Relations Act.

CONFLICT
 Conflict is an inevitable consequence of the employee/ employer relationship. The parties
should use their best endeavours through discussion, consultation and negotiation to
resolve any disputes which may occur, and must deal with each other in good faith in
seeking mutually acceptable solutions to disputes. They should consult each other when
they anticipate that disputes may arise.

 Employers/ Employees and their organisations should treat one another
with appropriate sensitivity and respect, and contribute towards a
constructive working environment within an organisation. They should
recognise that the workplace often entails working under stressful conditions
and in pressurised circumstances, and they should use their conflict
resolution skills in making genuine attempts to resolve disputes at the
workplace.
 The processing of a dispute must not prejudice an employee’s employment in
any way. The parties must recognise each other’s rights to utilise available
systems and procedures to resolve disputes that occur.

PRACTICE AND PROCEDURES
 A procedure is a fixed, step-by-step sequence of activities or course of action (with definite start
and end points) that must be followed in the same order to correctly perform a task.
 A practice on the other hand describes whareally happens, as opposed to what
you think will happen in a particular situation, such as in the workplace.

 Deviations from established practices and procedures will often result in perceptions of
unfair labor practice.
 Such instances have owed to inceptions of discrimination claims.

SOURCES OF DISPUTES
Disputes in general, in particular, labour disputes arise from two distinct sources
1. Interpretation or application of legal or quasi legal rights
2. Conflicting interest between the employer and employee on factors relating to
preferred conditions of service

ILO DEFINITION OF DISPUTE
OF RIGHT
 A dispute of right may be described as a dispute arising from the breach of contravention of
a law, contract of employment or collective agreement. For example, a dispute over the
fairness of an employee’s dismissal.

DISPUTE OF RIGHT
 This category of disputes relate to disputes in which the matter at issue is the question of
whether the preconditions exist for the application of an existing rule of law with legal
effect. If the parties to the dispute are asserting concrete claims, then the dispute is
categorized as a dispute of rights.
Dispute of right also means
 (a) A dispute concerning the interpretation, application or operation of a collective
agreement, including a dispute that arises from the context of a collective agreement, or

DISPUTES OF RIGHTS
 Disputes on rights are adjudicable, with suitable quasi-judicial adjustment machinery, provided
such disputes may be settled without any need for strikes or lockouts.
 The courts will determine whether or not rights, as specified in the constitution or any legal
document have indeed been breached.
 Where a breach is determined, the courts will award a relief to the aggrieved party. The basis of an
employee’s claim should be vested in a legal or contractual right. Such a right can therefore be
enforced through the Industrial court or the High Court

ILO DEFINITION OF DISPUTE OF INTEREST
 A dispute of interest takes place where parties to an employment contract are, through
negotiation, attempting to create a right by agreement with the other party. It therefore
cannot be resolved through enforcing legal rights.

DISPUTES OF INTEREST
 A dispute of interest is not based on any existing right.
Employees or their unions will often approach the employer in order to establish a new
right. Where the employer refuses to accede to such demands, and where the matter
remains unresolved, then the employees may exercise their right to strike after following
the appropriate procedures.

RULING ON DISPUTES OF
RIGHTS OR DISPUTE OF
INTEREST
 The Courts have often ruled that disputes of interest are limited to situations where
employees want to establish a new right or benefit. Where perceptions of unfair labour
practice are brought forth, they will not be used to assert an entitlement to new benefits,
new forms of remuneration or new policies not previously provided by the employer.
 However, where there is a claim about the unfair conduct of the employer in relation to the
existing employment structure, or conditions of employment, existing policies or past
practice, then the Courts will be persuaded to hear the case as it falls under disputes of
rights.

What is a disciplinary investigation?
 It is an exercise designed to test allegations or suspicions, to find out what really
happened and to establish whether there are grounds for disciplinary action to be
taken.
 A disciplinary investigation should be unbiased, fair and reasonable. It should
seek to establish the facts and not just collect evidence against the employee.
 A reasonable investigation is a vital part of a fair disciplinary procedure.Taking
time to establish the facts behind disciplinary allegations can help to ensure that
employees feel that they are being dealt with fairly and could ultimately save
employers from unfair dismissal claims.

 The law does not set out clear rules on how to carry out disciplinary investigations,
but employers still need to take steps to act fairly and impartially.
 Therefore, provided there are no contractual requirements or agreements with
trade unions as to how investigations need to be carried out, it is a question of
whether the employer’s handling of the situation was reasonable and/or lawful.

 A reasonable investigation would be expected to be even-handed and confined to
the facts of the case. It would begin with a prompt search for all the relevant
evidence, and not just any evidence that support allegations against an employee.
 A question that often arises at the beginning of disciplinary investigations is
whether to suspend the employee on full pay and benefits. It is advisable that
suspension be effected where there is a risk that evidence may be tampered with.

 It is normally also sensible to suspend the employee where the allegation is a very
serious one that may amount to gross misconduct and result in dismissal or if there
is a real danger in keeping the employee on the premises i.e. presence of
employee may endanger the wellbeing or safety of any person or state property.
 It should be made clear to employees that suspension does not mean they are
assumed to be guilty and that it is not a disciplinary sanction. Any such suspension
must be with pay, in writing and must make clear that it is only a temporary
measure.
 Periods of suspension should be as short as possible as delays may make an
otherwise fair dismissal unfair.

 Another question which is frequently asked in a disciplinary investigation is, must
the employee know of the investigation.
 It is not a standard legal requirement that employees be informed an investigation
is on the go.This is more particularly so if informing the suspect could genuinely
enable him/her to interfere with and jeopardise the investigation.
 Nevertheless, employers should be very careful about interfering with the
employee’s right to privacy.This is especially so where the investigation probes
the employee’s private life instead of workplace matters.

 NB: At the end of the day, any employee subject to an investigation should be
made aware that an investigation will be undertaken, and should be provided with
a brief summary of the reasons for this and the practical measures involved.
 Include any information which will be needed to be seen or considered prior to
the interview.

 There is no specified time period for completion of an investigation. However, the
investigation must commence without delay and must only be halted when the
investigator is fully satisfied that every stone has been turned over.
 The length of the investigation depends on the nature of the case, the amount of
evidence, and the availability of witnesses and other evidence.

 Employers make two common mistakes on receiving misconduct allegations
against employees.
 The first is that they ignore the reports because acting on them is “too much
trouble’’ or because they are scared of infringing on the legal labour rights that
employees enjoy.
 Alternatively, the managers may hastily implement discipline without first
investigating the validity of the reports.This may occur due to feelings of anger or
to ignorance of the labour law pertaining to disciplinary processes. Investigation
of misconduct allegations is a crucial step in legally acceptable disciplinary action
and cannot be bypassed.

 Employers should not, however, get too bogged down in rules and regulations
when carrying out disciplinary investigations. As long as they follow well drafted
disciplinary policies and the basic principles of fairness, their investigations are
likely to be regarded as reasonable.

 Prior to beginning the investigation:
1. Determine if the employee must be removed from the current work assignment
pending the completion of the investigation.
Actions may include; suspending the employee with pay pending the
completion of the investigation, reassigning the employee to another work
assignment or temporarily assigning the employee to a different supervisor.
2. Determine who should conduct the investigation. Investigators should be trained
in conducting employee misconduct investigations, be knowledgeable of
policies and procedures, have good interview skills, and be impartial.

People that should not conduct an investigation include; e.g. an investigator
against whom the employee made a complaint, one who is personally involved
with the allegation (such as a witness or complainant) employee’s friend or
relative, one who is emotionally involved such as one who is too angry to be
objective or too emotionally involved in defending the employee.

3. Develop an investigation outline.
 Clearly define the allegations/issues in need of investigation, consider the nature
and likely scope of the investigation based on the allegations/issues of concern.
 An investigation can simply be the gathering of facts looking at existing
documentation or it may require the planned and systematic gathering of data,
interviewing of relevant witnesses and analysing relevant documents, records,
policies, etc to determine next steps.

 Consider what information you need to gather, from whom and how this will be
obtained.
 Consider the time scales of the investigation taking into consideration the need to
conduct interviews, collate witness statements, gathering information and write
and submit the investigation report. Prepare the questions you may wish to ask
(open, closed and probing questions). Avoid using leading questions.
 Investigate the current allegations, not the employee’s past behaviour.

 Investigation meetings are not as formal as a Court hearing.
 Utilize a private, secure location
 Do not interview witnesses in groups
 Make necessary introductions. Confirm that it is a fact- finding meeting. It is
important to remain objective
 Explain the need for confidentiality/implications for breaching this e.g. Potential
impact on investigation/disciplinary action.
 Explain that notes will be taken throughout the interview
 Confirm the area/allegation around which the employee or witness will be asked
to comment. Make sure the employee investigated understand the allegations
being made against them.

 Remind employees at the outset that an investigatory meeting is not a disciplinary
hearing. In fact, it is the outcome of the investigation that is likely to determine
whether or not a disciplinary hearing is held.
 Explain that the evidence/information may be used in a subsequent formal
hearing/grievance meeting depending on the outcome of the investigation.
 Check if interviewee has any questions regarding the process.
 Be aware that, although there is no statutory right for an individual to be
accompanied at an investigatory hearing, the right may apply under the
employer’s disciplinary procedure or by reason and practice.

 A fair investigation to gather all the relevant facts provides the backbone of a fair
penalty for misconduct.
 Suspending an employee from work for a short period to allow an investigation to
take place may be appropriate in some circumstances.
 Where an employee has, or may have, relevant information about an act of
misconduct committed by a colleague, he or she should be interviewed. If
possible a witness statement should be obtained.
 As part of the investigation process, it may be necessary for the employer to
interview the employee who is accused of misconduct. However, it is important
that the investigatory interview does not turn into a disciplinary hearing.
 If the investigation leads to disciplinary action, the accused employee should be
informed of all the evidence against him or her so as to be able to prepare a
defence.

DISCIPLINARY HEARING PROCESS
 Discipline: is the right of the employer on the employee and it must be
handled with due care. The disciplinary process is instituted by a
“Supervising Officer” as defined by the Public Service Act No.30 of
2008,Section 2(1):
the supervising officer, in relation to an employee, means the public
officer designated, or delegated, under this Act, to supervise and
exercise disciplinary control over that employee.

The objective of a disciplinary action, is to bring about a change in undesirable
behavior, and should not be used in a vindictive manner. The primary purpose
of a disciplinary hearing is to establish whether or not there has been a breac
a rule and if so to decide an appropriate sanction. Another very important
reason for holding a disciplinary hearing is to enable an employee to state
his/her side of the story.
Importance of the rule of natural justice
 The Right to be heard is a fundamental principle of employment law that
before a decision affecting the rights or interests of an employee or
employees can be taken, such person or persons must be afforded a fair
hearing.
 The Public Service Act No. 30 of 2008 Section 39 (1) demands
that Disciplinary action against an employee who commits an act
of misconduct shall be prompt and in accordance with the rules
of natural justice

THE PROCESS
 When a supervising officer becomes aware of any act of misconduct/
serious misconduct by an employee, he /she shall make all necessary
investigations to establish whether or not an offence has been committed.
 The supervising officer shall then determine whether or not the evidence
against the employee’s response supports an enquiry being preferred
against the employee.

 Where the offence warrants a disciplinary action, the supervising officer shall
inform the employee of the offence(s) in writing. The show cause letter/
documents must clearly state the following:
a. The specific offence (s), which the employee is accused of.
b. The exact date and place where the offence (s) was committed.
c. The relevant clause(s) of the conditions of employment that the employee has
contravened.
d. The window period of 14 days within which the employee must respond to the
alleged acts of misconduct/ serious misconduct.

THE “NOTIFICATION OF A CHARGE”
LETTER
 The notification of a charge, written by the same supervisor must clearly state
the following:
a. The specific offence (s), which the employee is accused of.
b. The exact date and place where the offence (s) was committed.
c. The relevant clause(s) of the conditions of employment that the employee has
contravened.

Once the employee has received the notification of charge, the Complainant must
escalate the matter to the relevant senior officer who will arrange for the actual
disciplinary hearing. The letter of invitation to the employee must include the
following;
a. The exact date, venue and time of the disciplinary hearing.
b. The employee’s right to be accompanied by a co- worker or trade Union
representatives, if the employee is trade union member.
c. The employee’s right to bring a witness(s) if any .
The same senior officer arranges for a neutral Chairperson and a secretary for the
hearing in writing.

INVITATION TO A DISCIPLINARY HEARING -CONTINUED
d. The employee must be made aware that failure to attend the scheduled
disciplinary hearing will amount to his/her waiving their right to be heard.
The letter must caution that the hearing may proceed in their absence and
a decision will be taken.

Where an employee fails to attend a disciplinary hearing, the chairperson shall
consider the following:
1. Whether or not the employee has received the notification letter.
2. Whether or not the accused employee has tendered any apology as to why he/she
cannot appear before the disciplinary hearing and the reasons therein:

3.Whether or not the accused employee was informed that the disciplinary
may be held in his/her absence, if he fails to appear.
4. If it appears that the accused employee was not aware of (a) –(c) above ,
the disciplinary hearing may be postponed and rescheduled.
 If its is proved that the accused employee was aware of the notification
and the disciplinary hearing panel may give him a second and last
chance to respond to the accusation (s) and
 The minutes should reflect the considerations which have been taken
into account in deciding to proceed with or to postpone the hearing.
 If the employee fails to attend the disciplinary hearing for the second
time without valid reasons , disciplinary hearing shall proceed and the
disciplinary action taken in his /her absence and he/she shall be notified
of such in writing.
 Where the investigation(s) indicates that the employee has committed a
criminal offence, the supervising officer shall immediately notify the
Police.

 Where the employee is convicted and sentenced to a prison
term without any option of fine, the employee shall be summarily
dismissed from service for supervening impossibility of
performance, as it will also be impossible to hold a disciplinary
hearing under such circumstances.
 In a situation where an employee is sentenced to an
imprisonment term with the option of a fine and given a
suspended sentence, a disciplinary hearing shall be conducted
and appropriate disciplinary action taken in accordance with
terms and conditions of employment.

COMPOSITION OF A DISCIPLINARY HEARING
PANEL
The disciplinary hearing shall normally be composed of the following:
a. Chairperson: The chairperson of a disciplinary hearing shall be a member of
staff who is senior to the employee charged and who has no first hand
knowledge of the alleged misconduct. Where it is not possible to get an
independent Chairperson , an officer from another department or Ministry may
be requested to chair the hearing.
b. Secretary
c. Employee (Accused/Respondent)
d. Employee’s representative
e. Complainant
f. Interpreter (if need be)
g. Witnesses will be called in as and when required.

THE DISCIPLINARY HEARING
The chairperson
a). welcomes and introduces everyone present, and explains the purpose of
the hearing.
b). Confirms the right of the accused employee to representation and the right
to call his/her witness(es) to give evidence.
c).also informs the parties that each party will be allowed to cross examine any
witness(es) called by the other party to give evidence.
d). Reads the statement of the alleged offence (s) as captured in the
notification of charge letter and asks the employee whether or not she /he
pleads guilty to the offences.
e). Where the employee pleads guilty, the chairperson shall then ask the
employee to mitigate, by bringing in factors that could be considered for a
lighter sanction.

THE DISCIPLINARY HEARING-CONTINUED
f)Adjourns the hearing to consider mitigation and makes a decision. The
chairperson may request the complainant to give background of the
offence(s) so that he/she makes an informed decision.
g). Hearing reconvenes and the chairperson pronounces the sanction, giving
reasons for such decision.

WHERE THE ACCUSED DOES NOT PLEAD GUILTY
h). Where the employee does not plead guilty, the chairperson shall then invite
the complainant to state his/her case .
i). The employee is then afforded the opportunity to cross examine the
complainant.
j). The complainant will also be allowed to call his/her witness(es), if any to
give one after the other.
k). The employee is also given the opportunity to cross examine each witness
who give evidence.
l). The chairperson then gives the opportunity to the employee to make
his/her defence.
m). The complainant is then allowed to cross examine the employee.
n). Employee witness (es) if any are then called one after the other to give
evidence.
o). The complainant cross examines each of the witnesses.
p). The hearing adjourns to allow the chairperson to make a determination on
whether or not the employee is guilty.

q). The hearing reconvenes and a verdict is announced and reasons for such
finding (s) are also stated for each of the offences.
r). Where the employee has been found guilty, he or she is given an
opportunity to mitigate for a lighter penalty).
s). The hearing adjourns to allow the chairperson to consider the employee's
mitigation as well as other and aggravating factors from the complainant are
allowed for an appropriate sanction to be pronounced.
t). The hearing reconvenes and the chairperson pronounces the sanction /
penalty imposed and the reasons for such.
u). The employee is informed of his rights to appeal as stipulated in conditions
.

The objective of a disciplinary action, is to bring about a change in undesirable
behavior, and should not be used in a vindictive manner. The primary purpose
of a disciplinary hearing is to establish whether or not there has been a breach
of a rule and if so to decide an appropriate sanction. Another very important
reason for holding a disciplinary hearing is to enable an employee to state
his/her side of the story.
Importance of the rule of natural justice
 The Right to be heard is a fundamental principle of employment law that
before a decision affecting the rights or interests of an employee or
employees can be taken, such person or persons must be afforded a fair
hearing.
 The Public Service Act No. 30 of 2008 Section 39 (1) demands
that Disciplinary action against an employee who commits an act
of misconduct shall be prompt and in accordance with the rules
of natural justice
When should a disciplinary hearing be held?

3.Whether or not the accused employee was informed that the
disciplinary may be held in his/her absence, if he fails to appear.
4. If it appears that the accused employee was not aware of (a) –(c)
above , the disciplinary hearing may be postponed and
rescheduled.
 If its is proved that the accused employee was aware of the
notification and the disciplinary hearing panel may give him a
second and last chance to respond to the accusation (s) and
 The minutes should reflect the considerations which have been
taken into account in deciding to proceed with or to postpone the
hearing.
 If the employee fails to attend the disciplinary hearing for the
second time without valid reasons , disciplinary hearing shall
proceed and the disciplinary action taken in his /her absence and
he/she shall be notified of such in writing.
 Where the investigation(s) indicates that the employee has
committed a criminal offence, the supervising officer shall

The disciplinary hearing shall normally be composed of the following:
a. Chairperson: The chairperson of a disciplinary hearing shall be a member of
staff who is senior to the employee charged and who has no first hand
knowledge of the alleged misconduct. Where it is not possible to get an
independent Chairperson , an officer from another department or Ministry may
be requested to chair the hearing.
b. Secretary
c. Employee (Accused/Respondent)
d. Employee’s representative
e. Complainant
f. Interpreter (if need be)

The chairperson
a). welcomes and introduces everyone present, and explains the purpose of
the hearing.
b). Confirms the right of the accused employee to representation and the right
to call his/her witness(es) to give evidence.
c).also informs the parties that each party will be allowed to cross examine any
witness(es) called by the other party to give evidence.
d). Reads the statement of the alleged offence (s) as captured in the
notification of charge letter and asks the employee whether or not she /he
pleads guilty to the offences.
e). Where the employee pleads guilty, the chairperson shall then ask the
employee to mitigate, by bringing in factors that could be considered for a
lighter sanction.

h). Where the employee does not plead guilty, the chairperson shall then invite
the complainant to state his/her case .
i). The employee is then afforded the opportunity to cross examine the
complainant.
j). The complainant will also be allowed to call his/her witness(es), if any to
give one after the other.
k). The employee is also given the opportunity to cross examine each witness
who give evidence.
l). The chairperson then gives the opportunity to the employee to make
his/her defence.
m). The complainant is then allowed to cross examine the employee.
n). Employee witness (es) if any are then called one after the other to give
evidence.
o). The complainant cross examines each of the witnesses.
p). The hearing adjourns to allow the chairperson to make a determination on
whether or not the employee is guilty.

ER Presentation: Key Excerpts in legal Documents

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