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Several questions must be considered when an employee has committed a criminal offence. These include:

• Is it appropriate for an employer to conduct disciplinary proceedings simultaneously with a police investigation or prosecuting a criminal case in court?
• What are the obligations of the employer when an employee has committed misconduct of a criminal nature?
• What are the possible implications of conducting a disciplinary hearing while a criminal case is ongoing?

Answering these questions will assist employers in navigating the complex legal and ethical issues that arise when dealing with employee criminal misconduct.

The Employment and Labour Relations Act of 2004 (ELRA) prohibits an employer from taking any disciplinary action against an employee who has committed a criminal offence until a court has made a final determination and any appeals have been exhausted.

This means that if an employee has been charged with a criminal offence (such as theft, financial fraud, etc), the employer cannot terminate or dismiss the employee while the case is ongoing.

To comply with the ELRA, the employer may suspend the employee on full pay until the case is resolved. The Employment and Labour Relations (Code of Good Practice) Rules of 2007, rule 27,(5) guide how employers should handle such situations. Notwithstanding the provisions of section 35 of the ELRA, an employee charged with a criminal offence may be suspended on full remuneration pending a final determination by a court and any appeal thereto, on that charge.

Further, the Guidelines for Disciplinary, Incapacity and Incompatibility Policy and Procedures set out in the Code (the Guidelines) state that:

‘’            It is recognised that an employee’s misconduct may, in certain circumstances, result in criminal proceedings being instituted against the employee (e.g. cases of theft or assault). A clear distinction should be made between criminal proceedings and internal disciplinary proceedings. Disciplinary action should be instituted and decided fairly, irrespective of the process and outcome of any criminal proceedings.

The following court decisions clearly distinguish between criminal and internal disciplinary proceedings, supporting the above:

In the ruling of The Trustees of Tanzania National Parks vs Majuto O. Chikawe and Another (Labour Revision 15 of 2020) [2021] TZHC 6062 (24 August 2021), and Jacquiline Mushi vs Stanbic Bank Tanzania Ltd (Consolidated Revs Appl. No. 233 of 2022) [2022] TZHCLD 1027 (25 October 2022), it was established that criminal investigations should not be conflated with criminal proceedings initiated upon the filing of a charge sheet in a criminal court. This ruling further emphasized that the formal commencement of criminal proceedings against an employee requires the presence of a criminal charge in court.

Similarly, the Employment and Labour Relations Court in Kenya has consistently affirmed that an employer has the right to conduct disciplinary proceedings against an employee independently of any ongoing criminal investigation, as these two processes are deemed separate. This is evident in the cases of Godwin Barasa Barechi v. Kenya Trade Networks Agency [2019] eKLR and Gladys J. Cherono vs. Board of Trustees NSSF & Another [2021] eKLR.

Further to the above, the Court of Appeal of Tanzania, in the case of CCBRT Hospital (Appellant) vs Daniel Celestine Kivumbi (Respondent) Civil Appeal No. 437 of 2020, determined that internal disciplinary proceedings and criminal investigation processes are independent and can occur concurrently without impeding each other. The judges emphasized that a police investigation can also run concurrently with internal disciplinary proceedings without hindering any processes.

After reviewing the provided information, it is evident that a distinction exists between criminal investigations and criminal proceedings. Therefore, when an employee is involved in an ongoing criminal investigation, it is crucial to prioritize internal disciplinary actions to address any misconduct before the commencement of criminal proceedings.

What should an employer then do when an employee has committed an offence of a criminal nature?

To comply with the law, if an employee has engaged in misconduct of a criminal nature, the employer must take suitable disciplinary action before the employee is charged in a criminal court. This process involves conducting an internal investigation, sharing the investigation results, issuing a "show cause letter" to the employee, conducting a disciplinary hearing, communicating the result, and ultimately terminating the employee's employment contract by delivering a termination letter and a certificate of service.

What are the potential outcomes of moving forward with disciplinary action while a criminal case is unresolved?

If an employee's employment contract is terminated due to alleged criminal misconduct, but the employee's case has not been finalized in court, there is a potential risk that the Commission for Mediation and Arbitration (CMA) and any appellate court may view this as unfair termination. If the CMA and any appellate court determine that the employee's termination was unfair, the employer may be required to:

• Reinstate the employee from the date of termination without loss of remuneration;
• Re-engage the employee on any terms that the CMA / appellate court decides or
• Pay compensation to the employee of not less than 12 months’ remuneration.

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Notice: The information provided does not constitute a legal opinion, and any party should not rely upon its contents unless our written consent is sought and explicitly obtained in writing.