At the core of an employment dispute resolution process is the mandatory requirement of a disciplinary hearing. The requirement of a hearing has been codified in law under Section 41 of the Employment Act, 2007. That notwithstanding, it draws its fundamental basis from three cardinal elements of the justice system namely, natural justice, fair administrative action, and the right to a fair hearing.

Natural justice, to begin with, presupposes that one cannot be condemned unheard. This simply implies that justice must not only be done but, from a manifest and undoubted point, it must be seen to be done. Fair administrative action, as espoused under Article 47, requires that such processes must not only be expeditious, efficient, lawful, and reasonable but also embody procedural fairness. The right to a fair hearing does speak for itself. It connotes the resolution of a dispute by an independent or impartial tribunal without any unjustifiable and illegal limitations.

Consequently, the centrality of disciplinary proceedings in an employment dispute cannot be downplayed. Courts have ordinarily not shied away from interfering with internal disciplinary action if the process and procedure are flawed. The implication is that while much credence is given to substantive justice, in the employment dispute spectrum, procedural justice is as essential as substantive justice. Courts will therefore query and probe the process around the termination, including the disciplinary hearing process. To ascertain whether such a process was procedurally fair, courts would ideally juxtapose the process against the fundamental bases outlined earlier.

In a precedent-setting decision, the Court of Appeal in New Kenya Co-op Creameries Limited v Olga Auma Adede [2019] eKLR, made a pronouncement that has far-reaching implications on the conduct of disciplinary hearings in the termination process. The Court unequivocally and univocally reiterated that disciplinary hearings should be conducted orally and that the design of the law under Section 41 of the Employment Act, 2007, makes that mandatory. The Court opined as follows: –

“The repeated use of the word “shall” in section 41 makes it clear that the section is a mandatory provision. The use of the words “present during this explanation” in section 41(1) places an obligation on the employer that the explanation for which the employer is considering the termination be given in an oral explanation where the employee and another person chosen by the employee is present.

Section 41(2) requires that both the employee and the other person present be given an opportunity to make representations which representations should be considered by the employer in making his decision. In our view, section 41 provides for a physical interaction in the disciplinary process and therefore, the hearing provided under section 41 of the Employment Act, which is a mandatory provision, must be an oral hearing.”

Succinctly put, the Court has fronted the position that such interaction can only be done orally and that the law mandatorily requires so. On introspect, this pronouncement throws into disarray the embrace of technology in the conduct of hearings, more so disciplinary hearings in this case.

Technology has permeated almost all, if not all, aspects of human life and interactions. The unprecedented COVID-19 pandemic further disrupted normalcy and that meant the adoption of new ways of life, making the ‘new normal’. The gist of this decision seems to downplay the important role that technology has since taken up in human life and interactions. More importantly, the decision itself bodes differently with how current court proceedings are conducted as they are virtual.

It does look like that court here was trying to appreciate the unique nature of such proceedings and clarify that it’s a process that must not only be done but must also be seen to be done. However, this looks like the usual norm of legal practice to try and navigate the tectonic shifts brought about by technology and respond to the upheavals through new jurisprudence.

The end does not ideally justify the means for legal processes, as the means or process to the end is fundamental as well. However, this appreciation should not be as rigid as exemplified by this ruling. This ought to be a revolving door that allows for contextualization, based on the peculiarity of circumstances. In disciplinary hearings, a court ought to ask itself if the procedure applied was fair and if it embodied the principles of natural justice and fair administrative action. If the answer is in the affirmative the form should not matter, ideally!

Nonetheless, corporates need to understand that until a contrarian decision is arrived at, this is precedent and will guide the process going forward. As such, it is essential to comply, to avoid the risk of unnecessary and avoidable litigation, and the attaching risks to the brand and reputation.