ISSUE 61 | FEBRUARY 2024

AN OFFICIAL NEWSLETTER OF THE FEDERATION OF UGANDA EMPLOYERS

FUENEWS

THE VOICE OF EMPLOYERS

FUE CEO MESSAGE

Dear Esteemed Member,

In the words of John .C. Maxwell, a great author, ‘Everything Rises and Falls on Leadership’. In a bid to enhance employer competitiveness, FUE is keen on supporting CEOs excel in their leadership roles at the helm of various companies. We convened the 1st FUE-CEO Breakfast Meeting on 22nd February 2024 themed, ‘People: A Company’s Competitive Advantage’. The discussions entailed the need for organisations to have a

clear vision, focus on a specific goal and develop a mentorship culture at the workplace as significant aspects to foster continous learning and career advancement in order to retain talent talent and boost maximum productivity of the workforce.

In line with our role as a social partner in the tripartite structure, we participated in the 7th African Social Partners (ASP) Summit in Dar-es-Salaam on 7th and 8th February. The ASP Summit is a platform where key stakeholders from diverse sectors converge to monitor progress and challenges in job creation across the African continent. The ASP Summit 2024 concluded with a resounding call for increased efforts to generate more jobs across Africa. We look forward to working with various stakeholders to increase employment opportunities and promote sustainable development on the African continent.

At the international level, FUE is affiliated to the International Labour Organization (ILO) and was delighted to host Ms. Caroline Khamati Mugalla, the ILO Director Country Office, Dar-es-Salaam for a courtesy visit at our head offices in Kiwanga-Namanve. The visit was a fruitful engagement with deliberations on collaborations and partnerships with tripartite partners, the private sector, civil society and other stakeholders to advance social justice and promote decent work for all.

Furthermore, as a key stakeholder on labour and employment matters, we were consulted by the parliamentary committee on Gender, Labour and Social Development processing the Occupational Safety and Health (Amendment) Bill 2023 to share our views on the contents of the bill. Our recommendations included pre and post medical tests in high-risk workplaces and recognising mental health as an occupational hazard among others. We will keep you updated on the progress of the bill until it is passed into national law.

Thank you,
Together for Employers.

Douglas Opio

The Chief Executive Officer, FUE

CONTENTS

1

THE FUE-CEO BREAKFAST MEETING

The FUE-CEO Breakfast Meeting was convened on Thursday 22nd February 2024 from 8:30am (EAT) at Sheraton Hotel Kampala. The CEO Breakfast meetings are held annually to foster a support system for business leaders in the course of their work at the helm of various organisations. Mr. Simon Harvey, the Managing Director, Hariss International Ltd was the keynote speaker sharing on the topic, ‘People: A Company’s Competitive Advantage’.

The keynote presentation by Mr. Simon Harvey enlightened business leaders on aspects to make

people the competitive advantage such as clearly communicating the organisation vision, working towards a specific goal, focusing on solutions and investing in a mentorship culture. He emphasised continous learning and professional development as key tenets to ensure companies compete favorably at global level. Mr. Harvey further encouraged CEOs to leverage beneficial professional networks to benchmark new ideas, share knowledge and stay relevant in the labour market.
In addition, representatives from Global Alliance for Improved Nutrition (GAIN) shared a detailed presentation on the business advantage of workforce nutrition to boost maximum productivity and improve employee well-being. They highlighted mental health talks and regular medical checks as solutions to absenteeism, burn out and employee turnover.
FUE is keen on promoting a conducive business environment by equipping CEOs and leaders with practical skills and knowledge to excel in the world of work. We believe these discussions are beneficial to Employers in their leadership journey.

FUE CONSULTED ON OCCUPATIONAL SAFETY AND HEALTH (AMENDMENT) BILL 2023

At the International Labour Conference (ILC) 2022, the tripartite partners and International Labour Organisation (ILO) member states adopted a resolution on the inclusion of a safe and healthy working environment in the ILO’s fundamental principles and rights at work. On Wednesday 14th February 2024, FUE was consulted by the parliamentary committee on Gender, Labour and Social Development processing the Occupational Safety and Health (OSH Amendment) Bill 2023. The meeting was chaired by Hon. Charles Bakkabulindi, the Workers’ Representative in Parliament.

FUE recommended pre-employment and exit mandatory medical tests in high-risk workplaces such as the extractive industry to reduce the rate at which Employers are dragged into industrial court cases due to failure of some employees to disclose adverse health conditions during recruitment. The need to recognise mental health as an occupational hazard was emphasised to curb rates of absentism and reduce burn out rates . Additionally, we advocated for the inclusion of an OSH policy in the Human Resources Manual, conducting mandatory training for all employees on safety issues such as first aid, dealing with fire outbreaks and simple fractures as well as increasing the number of health inspectors operating nationally.

It’s expedient to note that over the years, FUE has provided support to Employers to ensure they uphold safety and health at the workplace through mini and comprehensive OSH audits, facilitating workplace registration in addition to reviewing and drafting workplace OSH policies.

Employers are implored to adhere to all legal standards to promote safety and health at the workplace. We are readily available to offer support and guidance on OSH services. For inquiries, kindly reach out to Henry Sabah, the FUE OSH Specialist on henry.sabah@fuemployers.org

THE AFRICAN SOCIAL PARTNERS SUMMIT 2024

FUE participated in the 7th African Social Partners (ASP) from the 7th to 8th February 2024 in Dar-es-Salaam. The African Social Partners’ (ASP) Summit is a platform where key stakeholders from diverse sectors converge to monitor progress and challenges in job creation across the African continent. The 7th ASP Summit in 2024 was a joint undertaking of the International Organisational of Employers (IOE) and the Association of Tanzania Employers (ATE), with the support of the European Union and Business Africa. Participants

included national business organisations, employers’ representatives, trade unions, government ministries, international organisations, financial institutions, think tanks and youth representatives.

The Summit emphasised the need to foster growth and entrepreneurial development by creating a business-friendly environment, facilitating access to capital and mentorship, and promoting diversity and resilience. Agri-business, advancing renewable energy and sustainable transportation were key priorities with a focus on policy support and public-private partnerships to spur investments in these sectors, offering new job opportunities and contributing to a greener economy. Efforts to enhance labour market systems through technology adoption, social dialogue and training were highlighted ensuring workforce preparedness for the future while promoting a collaborative environment.

In addition, the ASP Summit 2024 concluded with a resounding call for increased efforts to generate more jobs across Africa.

There is need to strengthen partner capacities through tailored capacity-building initiatives, ensuring all stakeholders are equipped to navigate economic changes and foster international cooperation. We look forward to work with various stakeholders and tripartite partners towards a prosperous economy.

STAKEHOLDERS' CAPACITY BUILDING ON MONITORING AND EVALUATION OF ACCEL AFRICA PROJECT

Child labour has remained a serious developmental challenge globally. According to ILO/UNICEF (2016-2020) survey, about 160 million children aged 5-17 were engaged in Child Labour which is more prevalent in the agriculture sector (about 80% of working children). In Africa, about 92.2 million children are in child labour representing 21.6 percent of all children. The situation is even worse in Uganda with statistics from the Uganda Bureau of Statistics’ National Labour Force Survey (NLFS) 2019/2020 showing, child labour in Uganda had doubled from 2,047,000 (14%) to 4,049,000 (28%) of children aged between 5-17 years (excluding household chores) with the number further increased to 6.2 million (40%) in 2021.

In a bid to combat child labour across Africa, the International Labour Organisation (ILO) with financial support from the Government of Netherlands launched a project in Africa entitled ‘Accelerating Action for the Elimination of Child Labour in supply chains in Africa’ (ACCEL Africa) at a function held in Nigeria on the 2nd of May 2019 with the aim of eliminating child labour through targeted actions in supply chains in six countries: Uganda, Nigeria, Cote d’Ivoire, Egypt, Malawi, and Mali.

Basing on the success of the first phase of the project that ended in 2023, the second phase of this ACCEL Africa project scheduled to start early this year will expand its efforts across multiple countries and sectors, fostering an integrated approach to eliminate child labour at sub-national, national, and global levels. In Africa, the focus countries for intervention in the project’s second phase which runs up to June 2028 include Uganda, Cote d’Ivoire, Ghana, Kenya, Mali, and Nigeria, working in the cocoa, coffee, cotton, gold, and tea supply chains.

In this regard, the Federation of Uganda Employers, as one of the key project’s implementing partners in Uganda participated at a 3-Day Stakeholders’ Training workshop on Monitoring and Evaluation for implementing ACCEL Africa Project Phase II. The training workshop took place from 12th to 14th February 2024, at Admas Grand Hotel, Entebbe. The major aim of the workshop was to equip participants with the skills for designing and implementing activities of the project, and in ensuring that the implementing partners’ Monitoring and Evaluation framework aligns well with that of the ACCEL Africa Project II.

The workshop was organised on a tripartite-plus basis and was attended by representatives from the Ministry of Gender, Labour, and Social Development (MGLSD), FUE, National Organization of Trade Unions (NOTU), Central Organisation of Free Trade Union (COFTU), Nascent Research and Development Organization Uganda (NRDO-U), Uganda Women’s Effort to Save Orphans (UWESO), Somero Uganda, Kyambogo University and MobiPay Agro Sys Limited, among others.

FUE’s role in the project will involve the following aspects:

  • Empowering employers to engage and adopt solutions to prevent and reduce child labour in supply chains.
  • Supporting in the formulation and implementation of policies through social dialogue (with government and workers) to prevent and reduce child labour in the supply chains.
  • Supporting on improving the legal and regulatory framework, and the enforcement mechanisms through social dialogue (with government and workers) to prevent and reduce child labour, particularly in supply chains.
  • Supporting in strengthening social dialogue on Child Labour in the tea and coffee supply chains through working with NOTU, COFTU and Civil Society Organisations (CSOs) in collaboration with the Bureau for Employers’ Activities (ACTEMP), and Bureau for Workers’ Activities (ACTRAV).
  • Providing support through social dialogue (with government and workers) to ensure that workers at lower tiers of the supply chains benefit from improved Occupation Safety and Health (OSH) conditions.

Therefore, eliminating child labour is everyone’s responsibility to ensure the future workforce is protected. We remain committed to working with Employers, tripartite partners, the ILO and other relevant stakeholders to curb this issue.

FUE VIRTUAL GENERAL SENSITISATION

The Future of Jobs Report 2023 predicts that hybrid work models, combining remote and in-person work will become the norm in the world of work. On Wednesday 7th February 2024, we hosted a Virtual General Sensitisation from 10:00am (EAT) themed, ‘Navigating the Changing World of Work’. The Guest Facilitator was Mr. Alex Nathan Sserwanga with Human Resource Practitioners, Line Managers and Legal Officers as participants.

Employers were implored to know their target market, understand emotional intelligence, adapt modern technology, develop flexible work arrangements, re-skill and upskill the workforce to excel in the labour market. The effect of digital skills, artificial intelligence and robotics on the types of jobs and skill-sets required were discussed hence the need to change the education curriculum to address the challenges. Human Resource Practitioners were requested to study emerging work trends to ensure talent retention and reduce employee turnover.

Its important to note that the landscape of work is undergoing profound transformations globally, driven by technological advancements, shifting economic paradigms and the enduring impact of the COVID-19 pandemic. There is need to contend with major shifts happening in the work environment.

If you missed the sensitisation, kindly recap it here;

Passcode: 3z?cUU=E

To request a customised training suited to your organisation needs, kindly reach out to Yusuf Nsubuga, the FUE Training Manager, yusuf.nsubuga@fuemployers.org

FUE-AGM REPORT ADVERTS

The FUE-AGM Report is an exclusive annual publication highlighting FUE’s work, initiatives and project updates with a main focus on labour productivity and decent work.

Employers are encouraged to book an advert slot at affordable rates to exhibit products and services to a wide local and international business community.

For advert placement, kindly contact info@fuemployers.org | 0392 777 410.

THE FUE MEMBERSHIP SATISFACTION SURVEY 2024

The FUE Membership Satisfaction Survey is a feedback tool used to gather information on Employers’ satisfaction regarding delivery of FUE products, services and events to enable us understand your needs and expectations better to deliver quality service.

A CASE OF GENDER EQUALITY AND ANTI-HARASSMENT AT KAKIRA SUGAR WORKS UGANDA

FUE in partnership with the Danish Industry (D.I) conducted trainings in the sugar sub-sector in Jinja. Our Esteemed Member Kakira Sugar Works was recognised as a champion of Sexual Reproductive and Health Rights (SRHR) at the workplace. Ms. Susan, the Human Resource Manager was interviewed to document these best SRHR practices. Read the interview below;

My foremost recommendation to other companies striving to make progress in these areas is to prioritize senior management support and collaboration across departments. Without strong backing from senior leadership, efforts to address gender equality and anti-harassment may face significant hurdles. It’s essential to ensure that policies and guidelines are not only reviewed and communicated but also effectively implemented throughout the organization. Additionally, fostering a culture of inclusivity and diversity requires collective effort and collaboration among departmental heads and team members. By fostering an environment where everyone feels valued and supported, companies can make significant strides in advancing these critical issues.

What I am most proud of is the unwavering support from our senior management team in reviewing, communicating, and implementing our anti-harassment policies and guidelines. Their dedication to these initiatives makes it easier for me to introduce, revise, or initiate new strategies aimed at enhancing gender equality, inclusion, and diversity in our workplace.
Furthermore, I take immense pride in the collaborative spirit demonstrated by the departmental heads, who are predominantly men. Despite being the sole woman among them and overseeing the entire workforce, their unwavering support empowers me to drive meaningful change. Their collective effort and willingness to rally behind these initiatives are instrumental in ensuring their success.

My foremost recommendation to companies seeking progress on these issues is that nothing is rooted in my very own experience. Every goal is achievable with the right approach and dedication. However, it necessitates engagement from all stakeholders right from the outset to ensure it’s a collective effort and not reliant on just one person.

At the onset, it’s imperative that such initiatives are positioned as company-wide endeavors. To foster ownership among employees, engagement must begin early on. For instance, when we revisited our anti-harassment policy, it became evident that certain crucial aspects were overlooked. These included provisions addressing physical contact, threats of violence, gender sensitivity, and avenues for social dialogue. Additionally, there was a lack of emphasis on safeguarding the privacy of complainants, which deterred individuals from reporting instances of harassment for fear of exposure. This highlighted the need for a more comprehensive and inclusive policy framework to address these issues effectively.

Secondly, I believe companies need to adopt a mindset of intentionality. Management support is crucial, but it must be coupled with deliberate efforts to effect change. Those in positions of influence should utilize their authority to drive policy-making and implementation processes towards achieving gender equality and fostering an inclusive work environment.

Furthermore, one of the challenges we encounter is that while some company leaders have the backing of top management, they lack the commitment to translate intentions into action. Despite acknowledging the importance of such initiatives, they fall short in actively championing them, hindering progress. Therefore, it’s essential for leaders to not only promote support but also demonstrate a genuine commitment to realizing these goals.

Absolutely, the training offered by FUE/DI has been incredibly beneficial. It was during this training that many important initiatives were conceived. Prior to attending the sessions, we did have some policies in place, but they were not comprehensive. My initial intention in attending the training was to identify areas where we were lacking. What became evident from the discussions was that many employees were not well-versed in matters of harassment and gender sensitivity.

Upon my return, I convened with my HR team, and we deliberated extensively. I emphasized that our approach to recruitment needed to evolve beyond just filling positions.

What stood out most for me was the importance of companies establishing policies and guidelines to create a gender-sensitive workplace. It’s crucial to have committed management that actively supports these initiatives. It’s not just about budgeting or financial resources; it requires collaboration and a deep understanding of how the world and the sector are evolving. With ongoing changes in the sector, it’s essential to adapt and know what actions to take. However, the key factor is leadership at the top; there needs to be someone at the helm who is dedicated to driving gender sensitivity throughout the company.

The other thing that stood out for me, companies need to incorporate gender tracking and reporting into their methods. For instance, at Kakira, we prioritize intentional reporting on gender distribution. By regularly reporting on our gender demographics, we can assess our progress. For example, we started at 16%, and now we have reached 24%. This tracking helps us understand if our initiatives are yielding results and if we are truly fostering change. Seeing an increase in gender distribution among our workforce motivates us to continue these initiatives.

Certainly, we have. Firstly, we began by reviewing our policies. Secondly, we ensured the introduction of gender sensitivity right from the point of recruitment. In all our job adverts, we now explicitly encourage women to apply.

Regarding anti-harassment measures, we revamped our induction process to be more intentional. Our seven-day induction program now includes a thorough explanation of our workforce demographics, including gender breakdowns across sections and departments. We provide this information so that new staff understand that joining as women adds value to our company. We emphasize our intention to cultivate a more gender-diverse workforce and assure them that it is achievable. Even in our graduate training program, we prioritize the recruitment of talented women.

However, it’s essential to note that our focus on gender diversity doesn’t compromise competitiveness. All candidates, regardless of gender, undergo the same rigorous selection process based on merit. We don’t make decisions based on assumptions or biases about a candidate’s personal circumstances, such as pregnancy.

At the core of it all, one of our key implementations involves ensuring gender balance and fostering a supportive environment for women to thrive in our organization.

Currently, we have 12,000 employees, with a target of reaching 13,000. Two years ago, when I joined, there were 1,600 women among the total workforce. Presently, we have 3,452 female employees. Our aim is to achieve a 40:60 ratio, but we’re currently at 30:70, with 8,562 male employees.

In our efforts to promote gender equality, we’ve focused on recruiting competent women and have observed higher retention rates among them compared to men. Interestingly, all disciplinary cases we’ve handled involved male employees, while teams led by women have shown zero disciplinary issues. This underscores the importance of having women in leadership roles for sustainable workforce management.

Despite our overall retention rate being at 94%, we’re concerned about the 6% separation rate, especially when led by men. To address this, we organize male conferences during our annual People Month in October. These conferences cover topics such as financial literacy, wellness, family planning, and reproductive health, aiming to engage men in discussions about their roles in the workplace and society. Through these initiatives, we strive to ensure that both men and women feel valued and supported in our workforce.

The most challenging aspect, surprisingly, doesn’t stem from men but rather from fellow women. This challenge arises from a lack of empowerment among some women, leading them to resist the very empowerment they need. When individuals are accustomed to being subordinate, it takes time for them to embrace leadership roles. That’s why we’re focusing on recruiting new faces who haven’t been conditioned to resist empowerment. Additionally, for those already on board, we’re committed to coaching and training them to overcome these ingrained perceptions.

One significant hurdle lies in dispelling preconceived notions. For example, during recruitment, it’s not uncommon for female committee members to question whether a woman can effectively manage certain tasks traditionally associated with men. These perceptions, deeply ingrained over time, require substantial effort to overcome.

However, we’ve observed positive changes among the women who have embraced empowerment. Take, for instance, a woman overseeing facilities maintenance. Her meticulous work ethic ensures efficient operations without unnecessary wastage. In contrast, male counterparts in similar roles may exhibit less conscientiousness, leading to resource mismanagement.

This realization underscores the integrity and commitment demonstrated by empowered women, paving the way for further progress in our gender equality efforts.

Before joining Kakira, I had experienced environments where women were empowered. In fact, in my previous workplace, there were more women in executive positions than men. So, upon arriving here and noticing the lack of female representation, I felt compelled to change that. It became a personal mission for me to empower more women to assume leadership roles. Witnessing the growth and success of other women is a significant motivator for me. It’s one of my primary personal goals to see young women flourish in various professional settings. If I have the opportunity to influence and support them in achieving that, I will seize it.

I firmly believe that equality is beneficial for businesses across the board. Even though our current discussion centers on a male-dominated sector, the principle remains universal. Maintaining impartiality in all aspects of our operations is inherently advantageous for business.

Based on the evidence I’ve shared, which spans various scenarios such as performance, discipline, and leadership, it’s evident that women often excel as leaders and yield better performance results. This isn’t to discredit the abilities of their male counterparts; rather, it highlights a trend where women demonstrate strong leadership qualities.

In many cases, while male colleagues readily support gender equality initiatives, they may hesitate to take the lead themselves. They offer collaboration and verbal support but may be reluctant to spearhead initiatives. For instance, when I proposed the idea of an Annual Male Conference, some questioned its necessity. However, these numbers offer valuable insights into employee dynamics, particularly concerning involuntary separations and financial responsibilities within families.

Addressing these issues is crucial for maintaining balance and fostering a conducive work environment. Gender equality, inclusion, and addressing harassment and diversity concerns are paramount for any business, whether established or startup. It’s essential to dispel biases and misconceptions to create a level playing field where everyone can thrive.

From my perspective, it involves a significant mindset shift. Instead of associating specific roles like electricians, welders, mechanics, or tractor drivers solely with men, we’ve embraced the concept of hiring based on skills and qualifications, irrespective of gender. By adopting this approach, we can attract a more diverse pool of talented individuals. Just as our education system is open to all without gender-based segregation, we’ve applied similar principles in our recruitment, performance management, and training processes.

Regarding areas, I haven’t addressed yet, I believe a forum intentionally created by the Federation of Uganda Employers to discuss various sectors could be beneficial. This forum would bring together players from different industries to address issues like anti-harassment and gender equality, ensuring continuous improvement. Today, our focus might be on anti-harassment and gender, but tomorrow it could be on something else entirely, such as cement production or breweries. By intentionally fostering gender sensitivity and diversity across different sectors, we can create a more inclusive workforce. It’s essential to debunk stereotypes such as assuming women are only suited for certain tasks in agriculture. By offering equal opportunities, we can tap into a broader range of talents.

FUE is committed to ensure Employers uphold SRHR in their organisations for a conducive work environment to increase maximum productivity, eliminate employee turnover and advance business growth. Special appreciation to D.I for their continuous support to reproductive health rights in the world of work.

FUE STAFF COMMENTARY

UPHOLD THE PRINCIPLE OF FAIRNESS IN WORKPLACE DISCIPLINE

“Fairness is what justice really is”, says Potter Stewart, the former U.S. Supreme Court justice. According to Alexander Britton, an American journalist, and political commentator, fairness is not an attitude. It is a professional skill that must be developed and exercised. These two great men ask leaders including employers to exercise just the same thing – fairness. Indeed, fairness at workplace is the foundation of a healthy work culture.

The Federation of Uganda Employers has consistently been conducting training and general sensitization of employers on compliance to Employment and Labour Laws at workplace in order to promote sustainable employment relations for increased productivity and business competitiveness. In the same spirit, FUE recently organised one of its annual FUE-CEO Breakfast Meetings under the theme: ‘Procedural and

Substantive Fairness in the Workplace’ to promote fairness in workplace discipline among employers. The meeting took place on 29th November 2023 at Golf Course Hotel. His Lordship, Hon. Judge Anthony Wabwire Musana of the Industrial Court of Uganda was the keynote speaker during this FUE-CEO Breakfast Meeting whose presentation on the fore mentioned theme and the repercussions for non-compliance with Part VII of the Employment Act, 2006 (Discipline and Termination) procedure was quite elaborate, clear, and spot on.
I have no doubt that the many Chief Executive Officers and Human Resource Managers who attended this high-level meeting had many take-aways from Judge Wabwire’s insightful presentation which I hope will help in minimizing the unnecessary court litigations and enhance best human resource practices at workplace. He emphasised the need for prompt and thorough investigations whenever there is a case that requires disciplinary action, constituting an impartial committee at workplace to handle conflicts and disciplinary cases instantly, holding of fair hearings, and presenting proof of the misconduct before any disciplinary action is taken so as to minimise litigation.

According to SVN Steenkamp Van Niekerk Inc Attorneys, the South African Lawyers based in Pretoria, Procedural fairness means the employer must follow a fair and proper procedure before disciplining or dismissing an employee in case of a dispute. These lawyers assert that the above requirement was derived from the “Rules of Natural Justice”, which consist of two principles, namely the audi alteram partem rule, which means “hear the other side” and is essentially the right to a fair hearing, and the nemo judex in causa sua rule, which means “no man is a judge in his own cause” and is essentially a rule against bias.

To determine whether the disciplinary procedures were procedurally fair, court will find out the following: Whether there was an investigation or not, if yes, whether the investigation was done promptly. For instance, Section 62 (5) of the Employment Act, 2006, states: “Except in exceptional circumstances, an employer who fails to impose a disciplinary penalty within fifteen days from the time he or she becomes aware of the occurrence giving rise to disciplinary action, shall be deemed to have waived the right to do so”.

Also, the quality of investigation and who carried it out is considered, whether the disciplinary process is based on the established Code of Conduct, whether an employee was notified of the allegations using a language that he/she can reasonably understand, whether the notice clearly set out the charges and the employee’s rights during the inquiry, whether the charge was detailed enough for the employee to determine the charge/s against him/her, whether the employee was given a reasonable time to prepare his/her defence, whether the employee was present during the hearing and given an opportunity to cross examine the employer’s witnesses and present his/her own case. If found guilty, whether the employee was given an opportunity to present mitigating circumstances before the sanction was given. And if the employee was dismissed, whether he/she was provided with reasons and reminded of his/her rights of appeal.

If the answer to any of the above is no, then it would imply that the disciplinary procedures by the employer or management were procedurally unfair. Since procedural fairness and substantive fairness go together, court will also be interested in determining the substance of the disciplinary case. Substantive fairness means the just, fair, and equitable reason for an employer to discipline or dismiss an employee.

To determine if this rule has been complied with, court will consider the following: Whether the employer has prima facie proof of the misconduct? For instance, Section 68 (1) of the Employment Act, 2006, states: “In any claim arising out of termination, the employer shall prove the reason or reasons for the dismissal, and where the employer fails to do so, the dismissal shall be deemed to have been unfair”.

Also, if the case for disciplining or dismissal of the employee is about breaking a rule of conduct, court will determine the following: Whether the rule of conduct is valid, fair, or reasonable, whether the employer has consistently been applying the code of conduct (rule) to all employees, whether the employee has knowledge about the rule, whether the sanction is appropriate for breaking the rule, whether the employer has provided sufficient proof of the employee’s guilt based on the test of “balance of probabilities”, whether the sanction is appropriate considering the facts and circumstance of the matter rather than a less severe penalty. If the answer to any of these is no, then the employer would be substantively unfair to discipline or dismiss the employee.

Therefore, it is a legal requirement for every employer/ manager to act both procedurally and substantively fair during the whole disciplinary process as unfairness may lead to legal actions, financial and reputational damage, and the decline in productivity which hinders business growth. Indeed, workplace grievances and concerns should always be handled promptly and justly for a healthy work culture to thrive.

By Patrick Ajuna,
Policy and Research Officer

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