Kenya: Warning letters as a form of disciplinary action

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​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​published on 5 July 2024 | reading time approx. 3 minutes


An employer ordinarily reserves the right to take disciplinary action against its employees as part of human resource administration in the management of the organisation. Courts of law in Kenya have also made this finding as was affirmed in the case of Nicholas Otinyu Muruka v Equity Bank Limited [2013] eKLR. ​


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Disciplinary action should however be undertaken in a fair, transparent and lawful manner. 

Disciplinary action is considered a reprimand or corrective action in response to an employee’s misconduct or poor performance. There are various types of disciplinary action and for purpose of this article focus will be on written warnings.

A written warning is a formal communication issued to an employee raising the employer’s dissatisfaction with the employee’s conduct and explaining the consequences of continued misconduct. The objective is to correct the unwanted behaviour or improve performance. 

To achieve fairness and transparency it is important for an employer to develop a clear disciplinary policy providing methodological sequence of warnings and consequences applying to all employees. Written warnings form part of the employee’s disciplinary documentation which is suitable for creating a document trail that is used to establish fair administrative procedures against an employee. 

A warning letter should contain the following: 
  • ​Details of the poor performance or the conduct raising concerns
  • Reference to specific relevant disciplinary policy or the law that has been breached
  • Details of corrective action required of the employee and the time frame (where possible)
  • The intended action if the employee’s conduct does not improve to the desired level and
  • Reference to the previous warnings given to the employee (where applicable and if issued within one year).

The Regulations for Wages (General) order under the Labour Institutions Act provides that an employee whose work or conduct is unsatisfactory or who otherwise commits misconduct which, in the opinion of the employer, does not warrant instant dismissal shall be warned in writing and the following criteria shall apply: - 

  • ​The first and second warnings shall be entered in the employee’s employment record and the shop steward of his union shall be informed accordingly
  • The second warning shall be copied to the branch secretary of his union
  • If an employee who has already received two warnings commits a third misconduct, he shall be liable to summary dismissal and
  • Provided that where an employee completes 292 working days from the date of the second warning without further misconduct any warning entered in his employment record shall be cancelled.

Process of issuing warning letters

Issuance of a warning letter requires that an employer takes an employee through a fair hearing process whose outcome resulted to the issuance of a warning letter. A warning letter thus suggests that an employer conducted some form of disciplinary process relating to the allegation outlined in the warning letter.

Courts of law in Kenya have equally affirmed this position as noted in the following matters: 

  • Rebecca Ann Maina & two others v Jomo Kenyatta University of Agriculture and Technology [2014] eKLR 
The court held that the issuance of warning letters, summary dismissal and termination of employment are all forms of disciplinary action that the employer is entitled to pursue at the conclusion of a disciplinary process. A warning is not an interim disciplinary measure but a final one based on the circumstances of the case.

  • ​Hosea Akunga Ombwori v Bidco Oil Refineries Limited [2017] eKLR
The court observed that warning letters cannot meet the standards expected of a show cause notice primarily because a warning letter by itself is a sanction or penalty after a disciplinary process. A warning letter comes after a formal process.

Disciplinary process

The disciplinary process alluded to above should be procedural and substantively fair. Substantive fairness refers to the obligation to prove the reasons for issuing the warning are valid and fair.

Section 41 of the Employment Act, 2007 outlines what a fair procedure entail. This section stipulates that, an employer shall, before taking disciplinary action against an employee explain to the employee, in a language the employee understands, the reason for which the employer is considering the disciplinary action and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during the explanation.
 
In light of the foregoing the process to be followed by an employer prior to issuing a warning letter should be as follows:
  • ​Issuance of a notice, commonly referred to a show cause letter, indicating the disciplinary offence committed by the employee and the possible repercussion of the offence (which would include a formal warning)
  • Giving the employee an opportunity to respond to the allegations
  • Inviting the employee for a hearing after the employee has responded to the show cause letter. During this hearing, the employee will be entitled to be accompanied by a representative of his/her choice. At the hearing the employer will present the allegation again to the employee and give the employee an opportunity to respond and explain the allegations
  • Informing the employee, after the hearing, of the decision to issue the employee with a warning for committing the disciplinary offense. This decision can be conveyed in the warning letter and
  • Acknowledging receipt of the warning letter by the employee. Thereafter, A copy of the received warning letter is kept in the employee’s personnel file.

An employer is thus obliged to consider the relevant labour laws to enhance transparency, fairness and lawfulness in the process of issuing warning letters as a form of disciplinary action. This will in turn help in minimizing the risks associated with financial exposure in form of court damages that are awarded in cases of unlawful disciplinary processes and the related poor corporate image.
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