Authors: Sheila Cadogan and Rachael Wanjala
Have you or someone you know been terminated from employment without notice or due
process?
Are you an employer unsure whether a termination was handled lawfully?
Understanding your rights and obligations under Kenyan employment law is crucial when it
comes to summary dismissal.
For a moment, imagine that you are at your desk, going about your day as usual. Then, as
you leave in the evening, you are informed not to report to work the next day or the
following week. This type of abrupt termination known as summary dismissal can
sometimes be legal. However, if not handled properly, it may amount to unfair termination
under Kenyan law.
This article provides a comprehensive guide for both employers and employees,
highlighting the legal framework, procedures, recent case law, and remedies related to
summary dismissal in Kenya.
What is a Summary Dismissal?
Under Section 44 of the Employment Act, summary dismissal occurs when an employer
terminates an employee’s contract without notice, or with less notice than the employee is
entitled to under any statutory provision or contractual agreement.
On the other hand, summary dismissal is legally permissible only when the employee’s
conduct has fundamentally breached his obligations arising under the contract of service.
In essence, the employee’s behavior must be so serious that it destroys the core of the
employment relationship.
Grounds for Summary Dismissal
The law provides specific examples of conduct that may justify summary dismissal. These
include if :
(a) absent from work without a reasonable excuse;
(b) intoxicated during work hours cannot perform work duties;
(c) knowingly and willingly neglect the work duties that they are supposed to do in line
with the employment contract.
(d) uses abusive or insulting language toward their boss or supervisor and other
employees;
(e) refuses to obey lawful and proper instructions from the supervisor and the
employer;
(f) arrested for a criminal offence and remains in custody for more than 14 days;
(g) commits (or is reasonably suspected of committing) a crime against the employer or
the employer’s property.
Challenging a Summary Dismissal
However, even though the listed actions are considered grounds for summary dismissal,
both the employer and the employee have the right to challenge:
1. Whether the Facts Justify the Dismissal: The employee can argue that the specific
circumstances or facts leading to the dismissal do not genuinely align with the listed
misconduct, or that the severity of the misconduct does not justify immediate
dismissal.
2. Other Grounds for Dismissal: If there are other reasons for dismissal that are not
explicitly mentioned in the list, the employer can still raise these as potential
grounds for a lawful dismissal, provided they are reasonable and lawful.
Steps for conducting a fair summary dismissal
Under Section 41 of the Employment Act, employers must adhere to a mandatory process
as follows:
1. Notification: An employer ought to inform the employee, in writing, of the
allegations against them.
2. Hearing: Thereafter, offer the employee a fair opportunity to respond to the
allegations. The employee has a right to be heard and also be accompanied by a
colleague during the hearing session.
3. Consideration: The employer must consider the employee’s explanation before
making a final decision.
Note: Failure to follow any of these steps above renders the dismissal or rather
termination unfair even if the reasons were valid.
Relevant Case Law in Kenya
1. Njuguna v Times U Sacco Limited (Cause E011 of 2023) [2024]
KEELRC 1249 (KLR) (15 May 2024) (Judgment)
This case was heard before the Employment and Labour Relations Court of Kenya in Meru
and determined on 15 th May 2024. The claimant, Njuguna, challenged the termination of his
employment by Times U Sacco Limited, alleging that the dismissal was unfair, unlawful, and
procedurally flawed.
Relief sought
Declaration of Unlawful Termination: A court declaration that the claimant’s
dismissal was unfair and unlawful.
Compensation: An award of Kshs. 1,656,480 as damages for wrongful termination,
equivalent to 12 months’ salary.
Reinstatement: Reinstatement to the position of Finance Manager without any loss
of benefits.
Costs and Interest: Payment of legal costs and interest on the awarded sums from
the date of judgment.
Issues for determination
Whether the reasons for the termination were valid and fair.
Whether the procedure followed was fair.
Whether the reliefs sought are merited.
Upon evaluating the evidence presented by both parties, the court found that while the
claimant was guilty of insubordination by failing to respond to audit queries and walking
out on the CEO, there was no evidence to support the allegation that he threatened to hit
the CEO with a diary. The court also held that the termination process was procedurally
unfair, as it did not comply with Section 41 and 45(5)(a) of the Employment Act or the
employer’s HR Manual as the claimant was not given adequate notice or a fair opportunity
to defend himself. As a result, the court awarded the claimant all the reliefs sought, except
for reinstatement.
The above court decision underscores the importance of adhering not only to substantive
justifications for dismissal but also to proper procedural fairness as required under
Kenyan employment law.
2. Olumbe v Standard Global East Africa Limited (Cause 578 of
2017) [2022] KEELRC 54 (KLR) (28 April 2022) (Judgment),
In this case, the court held that the term gross misconduct is too vague to be termed a
reason for dismissal of an employee’s contract. Therefore, it is not enough for an employer
to generally state that the termination has been occasioned by gross misconduct. An
employer must specify the conduct that led to the termination.
3. Cooperative Bank of Kenya Limited v Yator (Civil Appeal 87 of
2018) [2021] KECA 95 (KLR) (Civ) (22 October 2021) (Judgment)
Similarly, in this case the court stressed that employees must get a fair chance to defend
themselves. Also, if an employer has already handled the misconduct (say by issuing a
warning), they cannot later fire the employee for the same issue. That would amount to
double punishment which is unfair.
Way forward after being unfairly terminated, If you believe your dismissal was unfair:
1.Filing a complaint with the Labour office
Must be filed within three months of termination.
The labour officer will review the case, allowing both the employee and the
employer to present their sides, and will recommend the best way to resolve
the dispute, following the guidelines of section 49 of the Employment Act.
Lawyers are not allowed during this stage, but the employee or employer can
be assisted or represented by an official from a trade union or employer's
organisation, even if that official is a lawyer.
2. File a case at the Employment and Labour Relations Court
Must be done within three years from the date of dismissal.
The court upon evaluating the evidence presented by parties, may award
damages, reinstatement, or re-engagement to the aggrieved employee.
Available Remedies for Wrongful or Unfair Termination
1. Wages for the notice period he or she ought to have received, based on the
contract signed or the law. If the dismissal occurred before the employee completed
the work for which wages were due, the officer may recommend paying the
proportional wages for the time worked and any other losses the employee incurred
between the dismissal date and the end of the notice period. Alternatively, the
officer may recommend paying the equivalent of up to 12 months’ wages, based on
the employee's gross monthly wage at the time of dismissal.
2. Reinstatement of the employee, treating them as though the termination never
happened.
3. Re-engagement of the employee in a similar job or other suitable work at the same
wage.
4. Compensation up to 12 months’ gross salary for unfair termination.
Conclusion
Summary dismissal is a lawful process; however, it becomes unlawful if the procedure is
not carried out in accordance with the Employment Act, 2007. An employer must ensure
that all the required steps are followed to guarantee that the summary dismissal is both
substantively and procedurally fair. It is equally important for both employers and
employees to be aware of their rights to ensure that due process is observed and justice is
upheld in the workplace.
N/B: Termination of an employee has to be both substantively and procedurally fair. It
has to be accompanied by not only a valid reason but also fair procedure as provided by
the law.
Need Legal Help?
At Adroit Law, we are always ready to assist you in navigating the dismissal process
whether you're an employer or an employee. Our goal is to ensure the law is followed and
that your rights are fully protected.
Feel free to reach out to us today for legal advice or representation.