Internal Appeal Against Dismissal in Kenya: Designing a Process That Holds Up

Many employers treat the internal appeal as a formality that follows a dismissal. The Employment and Labour Relations Court (ELRC) does not. Section 45(5)(a) of the Employment Act directs the court, when deciding whether a dismissal was just and equitable, to consider the procedure the employer adopted, the communication of its decision, and the handling of any appeal against it. A badly run internal appeal against dismissal can therefore undermine an otherwise sound decision. This guide explains what the law says about appeals, what the courts have looked at, and how to design a process that holds up.

What the law says about an internal appeal against dismissal

The Employment Act does not itself create a general right of internal appeal. Two provisions bring it into play. Section 12(1)(b)(i) requires the statement of employment particulars to specify the person to whom the employee may apply if dissatisfied with any disciplinary decision, although section 12(3) excludes employers who had fewer than fifty employees when the employee started. Section 45(5)(a) then makes the handling of any appeal part of the court’s fairness inquiry.

The guidance the ELRC adopted in Bernard Ngugi v G4S Security Services Kenya Limited says the employee should be told of any right to appeal or apply for review, in view of statutory or contractual provision. So whether you must offer an appeal depends mainly on your contract and policy. Once you offer one, how you run it counts.

Who should hear an internal appeal against dismissal

The clearest risk is an appeal heard by the same people who took the original decision. In Leopard Beach and Spa v Imbochi, the trial magistrate held a dismissal unfair partly because the appeal was heard by the same people who had heard the original case, and so was not impartial. On appeal, the ELRC set that judgment aside. It held that the employee had been accorded a right of appeal under section 45(5), and that he had not proved who sat on the appeal panel or that it was the same panel. The employer won on the evidence, but the case shows how an appeal’s composition can decide a claim.

Our recommendation is to avoid the argument altogether. Use an appeal officer or panel that did not investigate the matter, sit on the original hearing or take the dismissal decision, and record the names of everyone who took part.

Seniority is a separate question. In Onunga v Equator Bottlers Ltd, the ELRC said it is not out of the ordinary for an employee’s immediate supervisor to take part in disciplinary proceedings, and that persuasive evidence of bias is needed. The employer there pointed out that the employee had not appealed against the chair’s participation. An appeal process that invites objections to panel membership early, and records how they were resolved, helps the employer.

Timing and finality

An appeal that is never decided is a liability. In Rotich v Agricultural Finance Corporation, the dismissal letter gave the employee fourteen days to appeal. He appealed five days later, but the appeal was never set down for hearing. The employer said the employee had by then been arrested on criminal charges. The court found a valid reason for dismissal but declared the termination procedurally unfair, relying on the presence on the disciplinary panel of the audit report’s author, whom the employer’s own witness said the manual did not allow to sit. It declined reinstatement and dismissed the claim, making no order on costs because the lapse was minor and had not materially affected the outcome. The court recorded that the appeal had never been concluded, and the employer had to explain that in court.

The lesson is to state a deadline for lodging an appeal and a target for deciding it, and to follow your own manual, since a breach of it became the ground for the procedural finding.

Designing an internal appeal against dismissal

The following is our recommended design.

Say it in the dismissal letter. Name the person or body to whom the appeal goes, the method and the deadline for lodging it.

Keep the appeal independent. Choose someone senior who was not involved, and record the composition in writing.

Review, not rubber-stamp. Give the appeal panel the charge, the evidence, the hearing record and the decision, and allow the employee to put new material and respond to the record.

Allow a colleague to accompany the employee. Section 41(1) gives that right at the first stage, and offering it again avoids arguments.

Decide within a stated time, with reasons. Communicate the outcome in writing and say whether the decision is final internally.

Plan for a stalled appeal. If the employee cannot attend because of illness, absence or arrest, offer a written procedure or a reasonable adjournment and record what you offered.

Keep the record. Section 45(5)(d) and (e) also look at how the employer treated similar cases and any earlier warnings, so the appeal file should show consistency.

Where an appeal can change the outcome

An appeal is also the employer’s last chance to correct a flaw. If the original hearing missed a step, such as a document not disclosed or a representative refused, the appeal panel can cure it by hearing the employee properly and recording the fresh decision. In our view that does not erase the flaw from the record, but it reduces the risk that a court finds the process as a whole unfair. For the show cause stage, see our guide to show cause letters, and for the investigation that comes first, our guide to investigating employee fraud.