Typically found in the employee handbook or code of conduct, disciplinary procedures guide on the acceptable standards of behaviour and performance at the workplace. Fair and consistent disciplinary processes not only foster a positive work environment but also protect the employer from potential non-compliance with the law while enforcing staff discipline. In this article, we give an overview of the law in Uganda with regard to workplace discipline.
The guidelines regulating employee conduct and performance must conform to the requirements of Uganda’s Employment Act 2006 including being in writing and in a language the employees understand as well as being non-discriminative and applied uniformly irrespective of race, colour, religion, gender, nationality, political opinion and trade union affiliation among others.
Disciplinary rules should also be available to all employees and the rules therein must clearly indicate the category of employees to whom they are applicable, the circumstances when applicable and the penalties for infringement among others. In workplaces with levels of supervision and managerial posts, the rules should make clear what level of management is mandated to initiate and implement any disciplinary action.
Employers must administer disciplinary procedures fairly, justly and reasonably in accordance with the law. Otherwise, there is a risk at adjudication that the disciplinary sanctions meted can be set aside with pecuniary consequences for the employer.
a) Act expeditiously
Excluding exceptional circumstances, disciplinary procedures must be undertaken expeditiously and without unnecessary delay. An employer who for example fails to impose a disciplinary penalty within 15 days from the time of becoming aware of the occurrence giving rise to disciplinary action ordinarily waives the right to do so.
It may in some instances necessitate carrying out further inquiries to substantiate the allegations against the employee.
c) Suspension during investigation
An employee may be suspended with half pay if the inquiry being conducted may reveal a cause for dismissal. This suspension should not exceed four weeks or the duration of the inquiry. In Sam Okao v Kampala Pharmaceutical Industries (Labour Dispute No. 049 of 2015, the Industrial Court held that when suspending an employee, it suffices to only give a reason without any details.
d) Conduct of the investigation
A neutral party should lead the investigations which once complete a report of the findings must be prepared and shared with accused employee at the earliest once a decision to pursue further disciplinary proceedings is taken. The employee should be informed of what is happening in a language that he understands and reminded of his rights to prepare his case and or explanation either personally or through representation of his choice.
e) Right to a hearing
An employee has a right to a fair hearing. In the case of Ebiju James Vs UMEME HCCS 0133/2012, the High Court held that even if the applicant’s conduct (or misconduct) was to be regarded as having fundamentally broken the contract of service and therefore justifying summary dismissal, the applicant had to be accorded the right to a hearing. The right to a hearing is guaranteed by the Constitution of the Republic of Uganda. The Court further elaborated that, “on the right to be heard, it is now trite law that the defendant would have complied if the following was done:
• Notice of allegations against the plaintiff was served on him and a sufficient time allowed for the plaintiff to prepare a defence.
• The notice should set out clearly what the allegations against the plaintiff and his rights at the oral hearing were. Such rights would include the right to respond to the allegations against him orally and/or in writing, the right to be accompanied at the hearing, and the right to cross-examine the defendant’s witnesses or call witnesses of his own.
• The plaintiff should be given a chance to appear and present his case before an impartial committee in charge of disciplinary issues of the defendant.”
f) Who conducts the disciplinary hearings?
The Employee Handbook should have clear guidelines on who within the organization has disciplinary powers and which individuals constitute the Disciplinary Committee/Panel (“DC”). Ideally, the committee should comprise officers that are higher in rank than the employee whose hearing is being conducted.
g) Disciplinary hearing proceedings
Though a physical hearing is preferred where the employee gets to meet the DC and all witnesses, the Court of Appeal held in the case of DFCU v Donna Kamuli (CACA No. 121 of 2016) that the hearing contemplated by section 66 of the Employment Act, 2006 does not require an employer to hold a mini-court and it can be conducted either through correspondences by letter/email or face-to-face hearing.
The disciplinary hearing should be in an enabling environment where both the employer as well as the employee can present their cases without fear or favour. Disciplinary powers exercised by employers take on a quasi-judicial nature and therefore, decorum must be maintained.
h) Communication of the disciplinary decision
Though the DC makes its decision on a balance of probability, it does not operate as a court of law. The DC should however be impartial and, make its decisions based on the facts and the evidence presented. DC hearings must be properly documented in the form of minutes kept as a record of proceedings.
It has been in contention sometimes that the record of proceedings is misrepresented because it is prepared by the DC. A possible solution to this is for the DC to also keep a voice/audio recording of the hearing which can later be transcribed into a record of proceedings.
Once the decision of the committee is reached, the decision must be expeditiously communicated to the accused employee. If found not guilty of the allegations, the accused employee will be expected to return to normal duty. Where the findings of the committee reveal that the allegations have merit, a disciplinary penalty is imposed and communicated to the accused employee.
i) Appeal process
It is good practice for an employee handbook to provide for a mechanism of appeal against the decision of the DC. If this right is provided, an employee has to first exhaust the internal mechanisms of appeal within an organization before escalation to the Labour Officer.
The appeal should be to a higher authority than the DC. Needless to say, the appellate authority should not have individuals that were involved in the earlier disciplinary hearings otherwise the impartiality of the appeal process comes into question. An internal appeal has the effect of staying the implementation of any punishment decided upon by the DC until the appeal has been heard and a decision given. Consequently, the decision of the Appellate authority is usually final without prejudice to the Courts of Law.
In deciding the imposition of a disciplinary penalty, the employer must have regard to the circumstances of the employee and the infringement itself. As a requirement of the law, an employee cannot have his/her employment terminated on first disciplinary infringement unless the misconduct is so grave or is repeated disciplinary infringement. a) Very minor infringements In cases of minor infringements of work discipline, the employer must deal with the situation by way of informal advice and correction rather than invoking formal processes. The sanction for such infringements can be a caution.
b) First-time minor infringements
For infringements such as late arrival for work, unauthorized absence from work or failure to apply oneself properly to work and where formal disciplinary procedures are commenced, the employees can only be penalized by way of a written warning.
c) Serious infringements
For serious infringements such as insubordination, the employee can be penalized by the imposition of a reprimand. Suspension as a means of punishment can also be considered but this should not exceed 2 weeks in any 6 months period.
d) Serious misconduct
For serious misconduct and repeated disciplinary infringements, the appropriate penalty is dismissal, especially where there is theft or damage of employer’s property, wilful endangering of the safety of the employer, fellow employer or member of the public, physical assault on the employer, fellow employee or member of the public and inability to perform work by reason of voluntary intoxication.
There are a series of procedural steps to comply with under the law while effecting summary dismissal that our next article will cover.
As our discussion highlights, disciplinary proceedings should be handled with great care considering the heightened risk at stake of escalation to adjudication regardless of whether the disciplinary penalty meted out is justified or not. Prior to initiating formal disciplinary proceedings, an employer must conduct thorough investigations into the matter. The employer must communicate clearly with the employee about the disciplinary proceedings, provide a fair hearing but also document everything. To the extent possible, an employer should consider alternatives to formal disciplinary proceedings/actions like counseling, training and mediation to de-escalate employer-employee disputes.