Summary Dismissal Procedure in Kenya: A Step-by-Step Guide

Summary dismissal is the immediate termination of employment without notice or payment in lieu of notice, usually due to gross misconduct. While this form of dismissal may seem harsh, the law in Kenya, under the Employment Act, 2007, requires employers to follow a fair procedure—yes, even for serious offenses!

At Ultimate Forensic Consultants, we help both employers and employees understand their legal rights and responsibilities when it comes to summary dismissals. Let’s break down the correct summary dismissal procedure in Kenya so you know what’s lawful and what’s not!

⚖️ 1. What is Summary Dismissal in Kenya?

✅ Summary dismissal happens when an employee is fired immediately without notice, due to serious misconduct that makes continued employment impossible.

👉 Covered under Section 44 of the Employment Act, 2007.
👉 Common reasons include:

Theft or fraud.
Physical assault.
Gross negligence.
Intoxication during working hours.
Breach of confidentiality.

✨ Key takeaway: Even though summary dismissal is immediate, it must follow due process, or it becomes unfair dismissal.

🚩 2. Legal Requirements for Summary Dismissal (Employment Act, 2007)

⚠️ According to Section 44(4) of the Employment Act, summary dismissal is only lawful if:

✅ The employee has engaged in gross misconduct (serious enough to destroy the trust required for employment).
✅ The employer provides a valid reason for the dismissal.
✅ The employer follows fair disciplinary procedures before dismissing the employee.

✨ If these steps aren’t followed, the dismissal becomes unfair and unlawful, even if gross misconduct occurred.

🔍 3. Step-by-Step Summary Dismissal Procedure in Kenya

👉 Let’s go through the proper procedure for a summary dismissal, ensuring legal compliance and fairness!

✅ Step 1: Identify the Misconduct

👉 The employer must identify a valid reason for summary dismissal.

✨ Examples of gross misconduct under Section 44(4) include:

Theft, fraud, or dishonesty.
Physical violence or threats.
Repeated insubordination or disobedience.
Intoxication at work.
Willful neglect or recklessness leading to loss or damage.

⚠️ Pro tip: Minor mistakes or poor performance do not justify summary dismissal—they require prior warnings or improvement plans.

✅ Step 2: Issue a Show Cause Letter

👉 Before dismissing an employee, the employer must issue a show cause letter (sometimes called a “notice to explain”).

✨ The letter should:

Clearly outline the allegations of gross misconduct.
State the evidence supporting the accusations.
Give the employee a chance to respond in writing.
Specify the deadline for responding (at least 48 hours).

📢 Why this matters: Skipping this step can render the dismissal unlawful, even with valid misconduct!

✅ Step 3: Conduct a Disciplinary Hearing

👉 The employer must hold a formal disciplinary hearing to allow the employee to defend themselves.

✨ The hearing must:

Be conducted fairly and without bias.
Give the employee an opportunity to present their side of the story.
Allow the employee to bring a colleague, union representative, or lawyer as support.
Record the proceedings for transparency.

📢 Warning: Failing to hold a disciplinary hearing before summary dismissal is a clear violation of Section 41 of the Employment Act!

✅ Step 4: Make a Fair Decision

👉 After the hearing, the employer must make a fair and evidence-based decision.

✨ Possible outcomes:

❌ Dismissal — if the gross misconduct is proven.
⚠️ Final warning — if the misconduct isn’t serious enough for dismissal.
✅ Reinstatement — if the evidence doesn’t support the allegations.

📢 Important: The decision must be communicated to the employee in writing.

✅ Step 5: Issue a Termination Letter

👉 If the employer decides to dismiss the employee, they must issue a written termination letter.

✨ The termination letter should:

Clearly state the reason for the dismissal.
Specify the effective date of termination (immediate).
Outline the employee’s final dues (salary for days worked, leave pay, etc.).
Include instructions for returning company property.

📢 Pro tip: Even in a summary dismissal, the employer is required to provide a certificate of service (as per Section 51 of the Employment Act).

✅ Step 6: Final Dues & Certificate of Service

👉 After summary dismissal, the employer must provide:

✅ Payment for days worked up to the dismissal date.
✅ Payment for any accrued and unused leave days.
✅ A certificate of service (Section 51 of the Employment Act).
✅ Overtime and commission payments earned before dismissal.

🚫 What the employee does NOT get:

Notice pay or payment in lieu of notice.
Severance pay (unless specified in the contract or in redundancy cases).

✨ Important: Withholding final dues is illegal, even after summary dismissal!

🛡️ 4. What Happens If Due Process Isn’t Followed?

👉 If an employer skips any part of the summary dismissal procedure, the dismissal becomes unfair and unlawful.

✅ The employee has the right to:

File an internal appeal with the employer.
Lodge a complaint with the Ministry of Labour.
Take the case to the Employment and Labour Relations Court (ELRC).

✨ Possible remedies from the ELRC:

Reinstatement (getting the job back with full pay for the period of dismissal).
Compensation (up to 12 months’ salary for wrongful dismissal).
Payment of lost wages and damages.

📋 5. Sample Show Cause Letter for Summary Dismissal

[Company Letterhead]
[Company Name]
[Company Address]
[Date]

To: [Employee’s Name]
[Employee’s Job Title]
[Department]

Subject: Show Cause Letter – Allegation of Gross Misconduct

Dear [Employee’s Name],

We are writing to inform you that the company is considering taking disciplinary action against you due to the following allegation of gross misconduct:

[Clearly state the allegation – e.g., theft, gross negligence, insubordination].

In accordance with the Employment Act, 2007, you are required to provide a written explanation within 48 hours of receiving this letter, detailing why disciplinary action, including summary dismissal, should not be taken against you.

You are invited to attend a disciplinary hearing on [Date] at [Time], where you will have the opportunity to present your defense. You may bring a colleague or union representative with you.

Failure to respond to this letter may result in the company making a decision based on the available evidence.

Yours sincerely,
[Name]
[Title]
[Company Name]

🏆 6. How Ultimate Forensic Consultants Can Help

At Ultimate Forensic Consultants, we help employers and employees with:

🛡️ Defending Against Unfair Summary Dismissals – Ensuring companies follow proper procedures.
🛡️ Drafting Strong Appeal Letters – Highlighting legal violations and procedural errors.
🛡️ Filing Legal Claims for Unfair Dismissal – Representing employees in court to seek compensation or reinstatement.
🛡️ Providing Legal & HR Support to Employers – Helping companies avoid wrongful dismissal lawsuits.

📞 Facing a summary dismissal issue? Let us help you get justice! Contact Ultimate Forensic Consultants today!

🎯 7. Conclusion

✅ Summary dismissal in Kenya is legal only when gross misconduct occurs, but employers must still follow due process.
✅ Employees have the right to appeal, file a legal complaint, or seek compensation if their summary dismissal was unfair.
✅ Employers should protect themselves from wrongful termination lawsuits by complying with Kenyan labor laws.

📞 Need help with a summary dismissal case? Contact Ultimate Forensic Consultants today!

🙋‍♀️ FAQs

1. Can my employer fire me immediately without a hearing?
🚫 No! Even in cases of gross misconduct, your employer must provide a disciplinary hearing before dismissal (as per Kenyan labor laws).

2. What happens if my employer terminates me without notice?
✅ You’re entitled to payment in lieu of notice—unless it’s a lawful summary dismissal.

3. Can I get compensation for unfair termination or summary dismissal?
✅ Yes! The Employment and Labour Relations Court can award you reinstatement, compensation for lost wages, and damages for emotional distress.

📢 Need support? Let Ultimate Forensic Consultants fight for your rights!