Summary Dismissal in Kenya is a crucial aspect of employment law in Kenya, allowing employers to terminate an employee’s contract without notice for gross misconduct. Understanding the legal framework, procedural requirements, and best practices surrounding summary dismissal is essential for both employers and employees.
This article provides an in-depth look at summary dismissal in Kenya, highlighting relevant case law and addressing common questions.
Legal Framework
In Kenya, summary dismissal is governed primarily by the Employment Act, 2007. Key sections relevant to summary dismissal include:
There are several lawful grounds upon which an employer can invoke summary dismissal in Kenya. These include:
1. Absence without leave: Skipping work without a valid reason or leave.
2. Intoxication during working hours: Being intoxicated while on duty.
3. Negligence or carelessness: Neglecting or performing duties carelessly.
4. Insolence or disrespect: Disrespecting one's employer or authority figures.
5. Disobeying lawful commands: Insubordination.
6. Criminal offenses: Engaging in criminal activities detrimental to the employer's interests.
While summary dismissal allows for immediate termination, Section 45 mandates that dismissals must be fair and just. This means that employers are required to investigate allegations and give employees a chance to respond before deciding on dismissal.
Procedural Requirements
1. Investigation
Before an employer can summarily dismiss an employee, a thorough investigation must be conducted. This includes gathering evidence and possibly interviewing witnesses to ascertain the facts.
2. Disciplinary Hearing
Employers must provide the employee with an opportunity to defend themselves against the allegations. This typically involves a disciplinary hearing where the employee can present their side of the story.
3. Documentation
All steps taken during the investigation and hearing must be well-documented. This includes minutes from meetings, evidence collected, and the final decision regarding the dismissal.
4. Notification
After the hearing, the employer must formally notify the employee of the decision, providing reasons for the dismissal. This notification should be in writing and delivered in a timely manner.
Recent Relevant Cases
The case of Mutiso v South Eastern Kenya University was heard at the Employment and Labour Relations Court at Machakos on March 15, 2024. Raphael K. Mutiso, the claimant, filed a memorandum of claim against South Eastern Kenya University, alleging that his summary dismissal was unfair, wrongful, and unlawful.
Mutiso, who was employed as an Assistant Accountant, was dismissed for absenteeism. He sought various reliefs, including reinstatement to his former position, payment of gross salary, and compensation for wrongful dismissal.
Issues for Determination
The court had to determine the following issues:
Whether the summary dismissal of Raphael K. Mutiso by South Eastern Kenya University was fair, lawful, and constitutional.
Whether Mutiso was entitled to the reliefs sought, including reinstatement, payment of salary, and compensation.
Decision of the Court
The Employment and Labour Relations Court, presided over by Hon. Mr. Justice Byram Ongaya ruled in favor of South Eastern Kenya University. The court found that the summary dismissal of Mutiso was not unfair, unlawful, or unconstitutional.
The court directed South Eastern Kenya University to compute and pay 45 leave days within 45 days, failing which interest would run at court rates until full payment. Each party was ordered to bear their own costs of the proceedings.
Conclusion
The judgment in Mutiso v South Eastern Kenya University highlights the importance of following due process in employment matters. While the court ruled in favor of South Eastern Kenya University, it emphasized the need for employers to adhere to procedural requirements and ensure fairness in disciplinary actions.
This case serves as a reminder to both employers and employees of the legal standards that must be met in summary dismissal cases.
The case of Cooperative Bank of Kenya Limited v Yator was heard at the Court of Appeal in Nairobi on October 22, 2021. The appellant, Cooperative Bank of Kenya Limited, appealed against the judgment of the Employment and Labour Relations Court at Nairobi, which had ruled in favor of the respondent, Patrick K. Yator.
Yator, who was employed as the Operations Manager at the Nakuru branch of the bank, was summarily dismissed for alleged misconduct related to the handling of cash and inventory. The bank claimed that Yator was responsible for a missing sum of Kshs 30,000,000, which was collected from Oriental Commercial Bank Limited.
Issues for Determination
The Court of Appeal had to determine the following issues:
Whether the Employment and Labour Relations Court erred in law and fact by finding that the summary dismissal of Yator was unfair and unlawful.
Whether the Employment and Labour Relations Court erred in awarding compensation to Yator for unlawful and unfair dismissal.
Decision of the Court
The case of Cooperative Bank of Kenya Limited v Yator in the Court of Appeal, presided over by Justices H. A. Omondi, M. S. A. Makhandia, and M. Ngugi, ruled in favor of Yator. The court found that the Employment and Labour Relations Court had correctly determined that the summary dismissal of Yator was unfair and unlawful.
The court emphasized that an employer cannot revive a complaint which had been resolved and use it as a basis for summary dismissal without giving the employee an opportunity to be heard. The court upheld the award of compensation to Yator, which included ten months' salary, one month's salary in lieu of notice, and two months' house allowance.
Conclusion
The judgment in Cooperative Bank of Kenya Limited v Yator underscores the importance of following due process in employment matters. The Court of Appeal's decision reaffirms that employers must adhere to procedural requirements and ensure fairness in disciplinary actions.
This case serves as a reminder to both employers and employees of the legal standards that must be met in summary dismissal cases. By following due process and respecting employee rights, employers can avoid legal challenges and ensure a fair and just employment relationship.
Employee Rights
Employees who face summary dismissal have several rights, including:
Right to a Hearing: Employees are entitled to a fair hearing where they can defend themselves against the allegations.
Right to Appeal: Employees can appeal the dismissal decision, typically according to the procedures outlined in the company’s policy.
Right to Compensation: If a dismissal is found to be unfair, employees may be entitled to compensation or reinstatement.
Best Practices
To navigate the complexities of summary dismissal effectively, employers should consider the following best practices:
Act Promptly: Delays in addressing misconduct can undermine the justification for summary dismissal.
Maintain Fairness: Ensure that all employees are treated equally and fairly during the process, adhering to company policies and legal standards.
Seek Legal Advice: Consulting with a legal expert can help ensure compliance with employment laws and mitigate the risk of legal challenges.
Implement Clear Policies: Having clear policies on workplace conduct and the consequences of misconduct can guide both employees and employers in handling potential issues.
Provide Training: Regular training for management on handling disciplinary issues can promote fair treatment and proper procedure.
Frequently Asked Questions (FAQ's)
What constitutes gross misconduct in Kenya?
Gross misconduct includes serious violations of workplace rules, such as theft, violence, and insubordination. The specifics can vary based on the employer's policies.
Can an employee appeal a summary dismissal?
Yes, employees have the right to appeal a summary dismissal according to the procedures outlined in the company’s policy.
Is it necessary to provide a warning before summary dismissal?
While it is generally advisable to provide warnings for minor infractions, summary dismissal can occur without prior warnings in cases of gross misconduct.
What are the potential consequences of unfair summary dismissal?
If a court finds that a summary dismissal was unfair, the employer may be ordered to reinstate the employee or pay compensation.
How can employers minimize the risk of legal challenges from summary dismissal?
Employers can minimize risk by conducting thorough investigations, following proper procedures, and maintaining clear documentation throughout the process.
Conclusion
Summary Dismissal in Kenya: A Guide with Applicable Case Law is a powerful tool for employers in Kenya but must be used judiciously and fairly. Understanding the legal framework, procedural requirements, and best practices is essential to avoid potential legal pitfalls.
Employees also have rights that protect them against unfair treatment, making it crucial for both parties to be aware of their obligations and rights in the workplace. If you need further guidance on summary dismissal or any employment law matters, don’t hesitate to contact our experienced legal team.
We are here to help you navigate the complexities of employment law in Kenya effectively.
To learn more, see the Employment Act.
