By Lilian Wamaitha
There are so many questions that revolve around the issue of interdiction. This article aims at answering some of those questions and putting to light what the Kenyan law says about interdiction.
So what is interdiction?
As it is, there is no fixed definition of what interdiction is but most people form the meaning depending on the type of employment and the context in which the term is being used.
For some Kenyan professionals, interdiction and suspension mean the same thing. And that meaning is an employee not attending work to give room for investigation or as a disciplinary action.
Interdiction is more common in the public sector while suspension normally occurs in the private sector.
In context suspension is considered a neutral action taken to facilitate investigations into an employee’s conduct while interdiction is more of a disciplinary action in which case, salary can even be withheld for the duration of the investigation.
Based on research therefore, interdiction and suspension is one and the same thing unless otherwise provided in the employment act.
What does lawful interdiction constitute?
- The law states that interdiction must be provided in the contract if it is in any one case to be lawfully applied in the case of employment.
- Interdiction must be carried out strictly compliantly with the provisions of the contract. For instance, where the contract stipulates that only a specific person can interdict, if this is done by someone else, the law deems this unlawful.
- In case of preventive interdictions, it must be made clear that in attending work, the employee will be jeopardizing the investigations.
- The period of interdiction should not be made unreasonably long; otherwise the employee has a right to consider themselves duly dismissed.
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The nature of interdictions in Kenya
At this point it is important to note that there are two kinds of interdictions; preventive interdicts and punitive interdicts.
A preventive interdiction is done where allegations of misconduct have not been proven yet and are pending investigation while punitive interdiction is in the case where the employee has already been proven guilty.
However, a punitive interdiction can only be issued where the employment contract, the law and Collective Bargaining Agreement allows for it.
All in all, there must be a clear reason why an interdiction is necessary.
This is because suspensions and interdictions are not administrative acts and they impact on the employee’s reputation, career advancement, job security and fulfillment.
This means that interdiction should only follow where there is pending disciplinary investigations and where it is clear that the employee remaining in employment will only interfere with the investigations or repeat the misconduct in question.
The reasons for such removal from work whether temporary or permanent must be clearly communicated to the said employee to allow them to defend themselves in a meaningful way.
Once the preliminaries have been addressed, the employee must be heard on merits and not to revisit the decision to interdict, but the hearing should be aimed at determining the allegations leveled against them and defenses that the said employee may wish to make. Only then, upon he close of the hearing can a sanction be issued.
And in case the sanction is an interdiction, the period of the said interdiction must be stated as well as the reasons for the same and what the employee is to do during that period to avoid any further injuries to their reputation or stigma.
Where such measures do not exist, the employee must remain on full pay and any deductions without a valid clause would serve as a breach of the employment contract on the part of the employee.
What happens when the period of interdiction is longer than allowed by law?
Where the interdiction stretches beyond the stipulated period, the employee is entitled to benefits prior to suspension or interdiction.
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What happens if an interdiction is found to be unlawful?
In case where the interdiction is unlawful or unfair, the employer is required by law to reinstate the employee and pay all withheld pay.
Knowing your rights in the work place is a must and this is why we constantly tend to educate people on matters of the law. Don’t live in the darkness. Know what you are worth and know where to draw the line.
Lilian is a Communication Officer at Career Point Kenya. Got any workplace related questions? Email them to firstname.lastname@example.org