How to Deal with Employees’ Misconduct

Disciplining employees is part and parcel of the employer-employee relationship. It follows that before the termination of the employer-employee relationship on ground of indiscipline, disciplinary procedures as required by law. Earlier this week, as I scrolled through my news feed on a social media site, I came across a story where an employer forced an employee to drink acid over missing shs60m at the employer’s car bond. Following the employee’s consumption of acid, the employer dropped the employee at the police station on charges of theft.  Sadly, the employee did not survive. He died soon after the Police had taken him (the employee) to the hospital after making a dying declaration pointing out that the employer had forced him to drink acid.

It goes without saying that the employer will be charged with murder. Crimes, unlike sins, can be classified into misdemeanors and felonies. Theft and murder are felonies. But then again, even felonies can be classified. There are heavy felonies and light felonies. Murder is a bigger felony. We all know that a wrong may not be used to make something right. Torturing a person to the extent of forcing them to drink acid is not justified on ground that the victim is suspected of stealing.

It is common knowledge that acid is characteristically corrosive. What did the employer think would happen to the employee to whom he forced to drink acid? Is this a case of a premeditated murder?

I digress…

The Employment Act requires that an employer specify the disciplinary rules applicable to the employee or refer the employee to the provisions of a document which is reasonably accessible to the employee. The disciplinary rules should specify the person to whom the employee may apply if dissatisfied with any disciplinary decision relating to the employee; and for the purpose of seeking redress of any grievance relating to his employment and the manner in which an application should be made; and where there are further steps to be taken consequent to any such application, explain the steps or refer the employee to the provisions of a document which is accessible to the employee which explains the steps

Matters regarding discipline usually arise when a case of misconduct arises. The employment Act also lists what possible misconduct cases may be and they are:

  1. If an employee absents himself from the place appointed for the performance of his work without permission or other lawful cause,;
  2. If during working hours an employee renders himself unwilling or incapable to perform his work properly because of drunkenness or substance abuse
  3. If an employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;
  4. If an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;
  5. If an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
  6. If 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 on bail or on bond or otherwise lawfully set at liberty; or
  7. If an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

The above amount to gross misconduct and justifies summary dismissal of an employee for lawful cause.

However, before an employer terminates the employee’s contract on ground of misconduct, the employer must explain to the employee in the language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a trade union representative present during such explanation.

More so, the employer must hear and consider the employee’s defense to the grounds of misconduct before making a decision to terminate.

Back to the story I began with…

The employer erred in law when he did not subject the employee to any disciplinary measures following the alleged theft of money. Physical torture of an employee due to the employee’s misconduct at work is not justifiable. It is rather a violation of the employee’s rights and also a violation of the constitution. The constitution guarantees freedom from torture and that no human being shall be subjected to cruel and inhuman treatment. To make an employee drink acid so that the employee is compelled to provide information to the employer is not only barbaric, but it is a disregard of the law and law enforcement systems in place.

It is therefore important that employers put discipline measures in place. They include having a code of conduct for the employees, constituting a disciplinary committee, bringing these measures to the attention of employees, and teaching the employees how these measures work.

This article was written by our Law Review Columnist, Samali Kukundakwe, for our weekly law newsletter, The Deuteronomy. To contact Samali, write to her on samali@bitalaadvoates.com. To receive The Deuteronomy in real time, click HERE.

 

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