Generally, termination of an employment contract must be preceded by a notice which is specified in the particular contract or otherwise determined by the period after which a salary is paid. In certain instances, however, an employer may terminate an employee summarily, that is, termination without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. Summary dismissal is usually defined to mean an action or inaction which constitutes a fundamental breach of the contract of employment and which fundamentally destroys the relationship between employer and employee.

Section 44(4) of the Employment Act provides in part that:

Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters or the decision of an employer to dismiss an employee summarily under subsection (3) shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal if—

  • without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work;
  • during working hours, by becoming or being intoxicated, an employee renders himself unwilling or incapable to perform his work properly;
  • 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;
  • 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;
  • 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;
  • in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or
  • 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.

Although an employer is entitled to summarily dismiss an employee where such an employee grossly misconducts himself, the employer must avail to the affected employee a chance to answer the allegations set against him in an environment that adheres to the principles of natural justice. An employer must follow the procedure set out in Section 41 of the Employment Act to the letter:

  • Notification to employee

Other than in the case of probationary contracts, an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a union representative of his choice present during this explanation.

  • Conduct a fair hearing

Before terminating the employment of an employee or summarily dismissing an employee, the employer shall hear and consider any representations which the employee or his chosen representative may make on the grounds of misconduct or poor performance.

The Court of Appeal in the case of Standard Group Limited -v- Jenny Luesby[1] held that:

There are no exceptional circumstances that have been established by the respondent that the case against the claimant was so severe that she could not be accorded the basic minimum. That is, a notice and a hearing made before the summary dismissal. That hearing is as important as the law made it mandatory even in the worst case scenario where an employee grossly misconducts oneself. The right to hearing is what amounts to meeting the true tenets of natural justice. Such a hearing in an employment relationship should be conducted in the presence of the affected employee together with another employee of her choice as this is the true meaning of a fair hearing. However senior an employee is, where the case is that of misconduct, the seniority is not justification for failure to meet the mandatory provisions of the law. It remains a sacrosanct duty for an employer to uphold. This was denied of the claimant and I find this to be an unfair labour practice”.

The employer must therefore pay keen attention to the procedure laid out in law when it comes to addressing cases of gross misconduct or otherwise risk exposing themselves to a claim of unfair termination under the Employment Act.


[1] [2018] eKLR


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