Tag: Startup

Being a director does not make a person an employee of the company as directorship is an office, not necessarily employment. If, however, the company enters into a Contract of Service with the director, with terms making the director an employee under the common law test, then the director becomes an employee. In these circumstances, relevant aspects of employment law including statutory protection as to unfair dismissal and redundancy apply in addition to the law relating to directors.

As an employee, the director will be bound by the provisions of their contract of service as well as by the implied terms in an employment relationship.  These include the implied terms of mutual trust and confidence, to act in good faith and not to disclose confidential information.

The salaries of directors who are also employees will be in accordance with the terms of their contracts of employment or service agreements.

Directors who are employees are usually mandated to carry out the tasks highlighted below.

1. Board Governance:

• Leading the company in a manner that aligns with the vision of the board.
• Communicate well, in a timely and accurate manner, all information necessary for the board to be able to carry out its functions.
• Provide strategic advice to the members of the board to keep them aware of developments within the industry.
• Ensure that the appropriate policies are developed to meet the company’s mission and objectives.
• Ensure statutory compliance.

2. Financial Responsibility:

• Develop resources that are sufficient enough to ensure the financial health of the organization.
• Fund raising and developing other sources of revenue.
• Preparation and submission a well-articulated fiscal report to the board including monthly budgets which reflect the true financial state of the company.
• Ensure maximum resource utilization, and works towards achieving economies of scale.

3. Organisation and Mission strategy:

• Work with board and staff to ensure that the company’s mission is fulfilled through implementation of programs, strategic planning and community outreach.
• Enhancement of the company’s image by being active and visible in the community and by working closely with other professionals, civic and private organizations.
• Preparation of corporate and annual business plans, and monitoring progress against these plans to ensure that the company attains its objectives cost effectively.

4. Organization Operations:

• Overseeing and implementation of appropriate resources to ensure that the operations of the organization are appropriate.
• Hiring and retention of competent, qualified staff.
• Direct and control the work of resources of the company to ensure the recruitment and retention of required numbers and types of well-motivated, trained and developed staff to ensure that it achieves its mission and objectives.
• Responsible for effective administration of operations.
• Responsible for signing all notes, agreements, and other instruments made and entered into and on behalf of the organization.
• Develop and maintain research and development programmes to ensure that the company remains at the forefront in the industry, applies the most cost-effective methods and approaches, provides leading-edge products and services and retains its competitive edge.
• Develop and maintain an effective marketing and public relations strategy to promote the products, services and image of the company in the wider community.

5. Liaison between organization and stakeholders:

• Appearing at official events.
• Liaison between the organization and external stakeholders.
• Develop and maintain relationships with not-for-profit organization leaders.
• Work closely with leaders of other companies to cultivate strong and long term strategic relationships to increase the company’s effectiveness.
• Establish professional contacts that can be of significant value to the company.
• Establish and maintain effective formal and informal links with major customers, relevant government departments and agencies, local authorities, key decision-makers and other stakeholders generally, to exchange information and views and to ensure that the company is providing the appropriate range and quality of services.

1. Matters regarded as professional misconduct

Under Section 30 of the Human Resource Management Professionals Act, 2020, a Human Resource Manager is guilty of professional misconduct if he/she: –

• deliberately fails to follow the laid down human resource procedures of his employer or client save those which are in violation of law;
• refuses, fails or neglects to apply established human resource principles in the course of discharging his professional functions;
• engages himself in corrupt activities or practices;
• is guilty of gross negligence in the conduct of his professional duties;
• engages himself in negative practices such as nepotism, tribalism, racism and other acts of discrimination in the discharge of his professional functions;
• discloses information acquired in the course of his duties to any person without the consent of his employer or client or otherwise than required by law;
• uses his position to obtain favours of a sexual kind or other benefits for which he is not entitled to in the discharge of his professional functions;
• engages in activities which are in conflict with those of his employer or client or activities which are contrary to those for which he is registered as a human resource professional;
• is found guilty of fraud or any dishonest act;
• allows any person to practice in his name as a Human Resource Professional unless such a person is the holder of a practicing certificate and is in partnership with him or employed by him;
• enters for the purpose of or in the course of practicing as a human resource professional, into partnership with a person who does not hold a practicing certificate or secures any professional business through the service of such a person or by means not open to a Human Resource Professional;
• pays or allows or agrees to pay or allow directly or indirectly, to any person (other than a person who holds a practicing certificate, is a retired partner or the legal representative of such a partner) any share, commission or brokerage out of the fees for, or profits of, his professional services;
• expresses an opinion on any matter with which he is concerned in a professional capacity without obtaining sufficient information on which to base the opinion;
• fails to keep the funds of a client in a separate banking account or to use any such funds for purposes for which they are intended; and
• does or fails to do any other act which may be prescribed.

2. The inquiry procedure

• The Disciplinary Committee

If the Council of the Institute of Human Resource Management believes that a Human Resource Manager may have been guilty of any of the matters listed above, it refers the matter to the Disciplinary Committee to inquire into the matter. The committee consists of five members appointed by the Council, from among the members of the council. The committee appoints one of its members to be the Chairperson.

The Manager whose conduct is being inquired should be afforded an opportunity to be heard in person. The Committee has power to regulate its own procedure. During inquiry proceedings, the committee may administer oaths, and enforce attendance of persons as witnesses and the production of books and documents.

• Sanctions

If, upon recommendation by the Disciplinary Committee, the Council is satisfied that a Manager is guilty of professional misconduct, the council may: –

• Issue the human resource manager with a letter of admonishment;
• Suspend the registration of the human resource manager for a specified period not exceeding twelve months;
• Withdraw or cancel the practicing certificate of the human resource manager for such period not exceeding five years as may be appropriate;
• Impose a fine which the Council deems appropriate in the circumstances; or
• Remove the name of the human resource manager from the register of qualified human resource managers.

The Council should inform the manager in question as soon as practically possible of the action taken against him.

A manager whose name has been removed from the register or whose practicing certificate has been suspended should surrender to the Council his or her certificate of registration or practicing certificate. Failure to surrender the registration certificate or practicing certificate amounts to professional misconduct, thus one being liable to fine not exceeding one hundred thousand shillings.

• Right of Appeal

If a manager is aggrieved by the Council’s decision, he/she may appeal to the High Court within sixty (60) days from the date of the decision. The High Court may annul or vary the decision as it finds necessary.

Where a human resource manager has been suspended from practicing, he/she may appeal to the Council for the lifting of the suspension at any time before the expiry of the suspension. If the Council is satisfied, it will lift the suspension upon receipt of the prescribed fee, and restore the manager’s registration and practicing certificate.

The disciplinary procedure is provided under Section 41 of the Employment Act. The procedure generally encompasses the following steps:

1. Explaining to the employee in a language the employee understands, the reason for which the employer is considering termination;
2. Allowing a representative of the employee, either another employee or a shop floor union representative of his choice, to be present during this explanation;
3. Hearing and considering any representations which the employee makes in defense of the grounds of termination, and hearing the representations of the employee’s representative.

An employer is required to follow the set internal disciplinary rules (if any) while conducting the disciplinary process.  Section 12 of the Employment Act requires that these rules be set by an employer when he has more than 50 employees.  Employers who do not have internal disciplinary rules must strictly adhere to the irreducible statutory minimum procedures as enumerated above.

To supplement the above irreducible statutory minimum procedures, courts have come up with the following effective guidelines and objective steps:[1]

1. A report to the relevant authority that a misconduct has been committed by an employee.
2. A preliminary report to gather relevant information on the alleged misconduct.
3. If the evidence is obvious and the misconduct is gross, the employer can summarily dismiss the employee.
4. If the evidence is not obvious and the misconduct is not gross or its weight is not clear during the preliminary investigation, the proper notification is drawn. The notification commonly referred to as a Show Cause Letter must clearly spell out the intended ground for termination being misconduct, poor performance or physical incapacity. The particulars must be clear enough for the employee to be able to effectively defend himself or herself. The notice must give the employee reasonable time within which to respond.

Additionally, the notice should inform the employee of his fundamental right to have at the hearing a person of his choice, his Union or a fellow employee. Whether the employee is aware of this right or not, the duty is vested upon the employer to reiterate these rights and dully accord them to an employee being subjected to disciplinary proceeding.

Where an employee chooses not to have such representation or the presence of a fellow employee of his choice, then this must be carefully recorded as when raised at any hearing before a Court of law, the Court is as a matter of justice, caused to refer to such proceedings. In the absence of such confirmation that the employee was represented by his Union or a fellow employee of his choice present, then employer makes a fundamental omission in the disciplinary process that does not meet the tenets of section 41 of the Employment Act, thus negating the proceedings and any decisions therefrom.[2]

5. Upon responding or the time allowed lapsing, the employee should be called to a hearing. At the hearing all relevant information should be recorded in a fair process where the complainant is not leading or chairing the proceedings. The employee should be given ample chance to exculpate oneself. A third party of the employee’s choice should be permitted to attend the hearing.
6. A report of the hearing proceedings should be drawn and formally maintained by the employer as evidence of due process of fairness. The report must set out the findings on the allegations, any mitigating or aggravating factors and the recommendations which may include the termination.
7. The decision made must then be communicated to the employee.

[1] NICHOLUS MUASYA KYULA v FARMCHEM LTD [2012] eKLR

[2] Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 others [2014] eKLR

Absenteeism – Without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work.

Intoxication – During working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work.

Dereliction – An employee willfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly.

Disorderly Conduct – An employee uses abusive or insulting language, or behaves in a   manner insulting, to his employer or to a person placed in authority over him by his employer.

Insubordination – An employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer.

Commits a criminal offence – where an employee commits, or on reasonable and sufficient grounds is suspected of having committed a criminal offence against or to the substantial detriment of his employer or his employer’s property.