By Purity Ngigi
In the recent past, a number of high profile criminal cases have dominated the media headlines. Oftentimes, the accused are employees of an organisation. Once arrested the investigation authority usually petitions the court to issue orders for the detention of the accused pending investigation. The reasons given is fear of witness and evidence tampering. In various instances, the court has granted such orders to detain an accused for an extended period or for the denial of bail. In such a scenario an employer is faced with the dilemma of how to deal with the lost productivity of a detained employee. In addition, the negative media attention may also harm the employer’s brand as they are adversely mentioned in tandem with the accused employee.
Section 44 4(f) of the Employment Act, Cap 226 provides that an employer has the right to summarily dismiss an employee who has been arrested for a cognizable offence punishable by imprisonment and is not released within 14 days whether on bail/bond or otherwise lawfully set at liberty.
A cognizable offence as per Section 2 of the Criminal Procedure Code, Cap 75, is any offence or crime by which the police officers in charge can commence investigations and effect an arrest without the requirement of a court order or warrant of arrest. Examples of cognizable offences include rape, murder, manslaughter, theft, robbery, kidnapping, unnatural offences etc. Section 118 (3) of the Traffic Act Cap 39, provides that traffic offences are cognizable.
In contrast, non-cognizable offences are those, which the police require a court warrant or leave of the court to effect an arrest or commence investigations. They include misbehaviour, public annoyance etc.
Therefore, where an employee has been arrested for an alleged non-cognizable offence, the employer cannot terminate their employment without following due process (both substantive and procedural). This process includes issuing the employee a valid reason for termination and allowing the employee to respond to the allegations. An employer who terminates an employee without following due process is culpable of wrongful termination and the employee can institute a claim for damages before the Employment and Labour Relations Court. It is also worth noting that most non-cognizable offences are bailable and rarely would an employee who is arrested have to be absent from work for over 14 days due to bail having being denied.
However, in the case of an employee who is unable to raise the bail/bond for a non – cognizable offence and continues to be detained for a period of over 14 days, it is not clear what options an employer may exercise Since the law is silent, one of the probable options. What the employer may consider is the deduction of wages of the employee for every day the employee is absent from work. It is arguable that after a reasonable period of time of the employee’s continued absenteeism, then the employee may consider termination. However, careful consideration should be given to the circumstances of the employee and all avenues exhausted prior to effecting the termination.
On the other hand, where the employee’s arrest is on an alleged cognizable offence, and such employee is arrested and detained for over 14 days without bail or bond, the employer has a right to summarily dismiss them from the 15th day of such arrest (note it is not 14 working days but 14 calendar days). Summary dismissal means that the employer terminates the employment without giving notice or by giving a lesser notice period than provided for by law or contract. This, however, does not take away the obligation on the employer to give the employee a fair hearing on the reasons for termination in accordance with the procedure set out in the Employment Act. It is worth noting that traffic offences are cognizable and therefore unless specifically excluded under the contract of service, the employer reserves the right to summary dismiss an employee who is arrested and detained for more than 14 days on account of a traffic offence.