Grounds for Summary Dismissal in Kenya: A Complete Guide

Summary dismissal is the immediate termination of an employee’s contract without notice or payment in lieu of notice, usually due to gross misconduct. But for it to be legal in Kenya, the grounds for dismissal must be valid, serious, and follow due process.

At Ultimate Forensic Consultants, we help both employees and employers navigate dismissal cases fairly and legally. Let’s break down the grounds for summary dismissal in Kenya, your rights, and how to challenge an unfair dismissal!

⚖️ 1. What is Summary Dismissal in Kenya?

✅ Summary dismissal means firing an employee instantly—without giving the usual notice period or payment in lieu of notice—because of gross misconduct that makes continued employment impossible.

👉 It’s legal under Section 44 of the Employment Act, 2007, but only under specific conditions.
👉 Even in cases of serious misconduct, employers must follow due process, including a fair hearing.

📢 Important: Summary dismissal is not a free pass for employers. Without fair reason and proper procedure, it becomes unfair and unlawful.

🚩 2. Legal Grounds for Summary Dismissal in Kenya

Under Section 44(4) of the Employment Act, an employer can summarily dismiss an employee for the following reasons:

🚨 1. Theft or Fraud

If an employee steals company property, engages in fraud, or falsifies records, the employer can summarily dismiss them.

👉 Examples:

• Stealing money, inventory, or confidential company data.
• Forging financial documents or inflating expense claims.

✅ Must be proven with clear evidence—accusations alone are not enough.

🚨 2. Physical Assault or Violence

An employee who commits or threatens physical violence against a colleague, supervisor, or customer can be dismissed immediately.

👉 Examples:

• Fighting or assaulting a coworker.
• Threatening a supervisor or creating a hostile work environment.

✅ Employers must investigate before dismissing on this ground.

🚨 3. Gross Negligence

Negligence that causes (or could cause) significant loss or damage to the company is a valid reason for summary dismissal.

👉 Examples:

• Ignoring critical safety procedures.
• Damaging company property through recklessness.

✅ The negligence must be severe enough to break the trust relationship.

🚨 4. Drunkenness or Drug Use During Work Hours

If an employee is intoxicated at work and their condition affects their ability to perform their duties, they can face summary dismissal.

👉 Examples:

• Being drunk on duty, especially in roles involving machinery or client interactions.
• Using drugs at the workplace.

✅ Employers must document and confirm intoxication, often through medical testing or witness accounts.

🚨 5. Insubordination or Disobedience

Refusing to follow lawful and reasonable instructions from an employer is grounds for dismissal.

👉 Examples:

• Defying management’s direct orders without valid reason.
• Consistently refusing to carry out duties outlined in the employment contract.

✅ One instance may not warrant dismissal, but repeated insubordination often does.

🚨 6. Breach of Confidentiality

Divulging company secrets or sharing sensitive information with competitors is considered gross misconduct.

👉 Examples:

• Sharing customer lists with a competitor.
• Leaking company financials to unauthorized parties.

✅ Employers must provide evidence of the breach before dismissal.

🚨 7. Absenteeism Without Reasonable Cause

An employee who is absent without permission or valid explanation for more than two consecutive days can be summarily dismissed.

👉 Examples:

• No-call, no-show for several days.
• Failing to provide a medical certificate after being absent.

✅ However, employers should allow the employee a chance to explain their absence before dismissal.

🚫 3. What Grounds are NOT Valid for Summary Dismissal?

👉 Even though summary dismissal is harsh, employers cannot use it for:

❌ Poor performance – Unless it amounts to gross incompetence after warnings.
❌ Minor mistakes – A small error does not justify summary dismissal.
❌ Discrimination – Firing someone due to race, gender, religion, pregnancy, or disability is unlawful.
❌ Retaliation – Dismissing an employee for reporting misconduct or filing a complaint is wrongful termination.

✅ If your summary dismissal was based on these reasons, you have strong grounds to challenge it!

📋 4. Due Process for Summary Dismissal in Kenya

👉 Even with valid grounds for dismissal, the employer must follow due process.

✅ Step 1: Issue a Show Cause Letter

• The employer must give the employee a written letter explaining the allegations and requesting a response.
• The employee should get at least 48 hours to respond.

✅ Step 2: Hold a Disciplinary Hearing

• The employee has a right to defend themselves and present evidence.
• They can bring a witness, colleague, or union representative.

✅ Step 3: Make a Fair Decision

• The employer must base the decision on evidence, not assumptions.
• If dismissed, the employer must issue a formal termination letter.

📢 Warning: If this process is skipped, the dismissal becomes unfair and unlawful, even if the misconduct was serious.

💼 5. Employee Rights After Summary Dismissal

Even after a lawful summary dismissal, employees are entitled to:

✅ 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.

🚫 No entitlement to:

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

🛡️ 6. What to Do If You’re Summarily Dismissed Unfairly

👉 Step 1: Request a Termination Letter

• Ask for a written explanation of why you were dismissed.
• If your employer refuses, request it via email or in writing.

👉 Step 2: File an Internal Appeal

• Most companies allow you to challenge dismissal within 5–14 days.
• Request reinstatement, compensation, or a mutual separation agreement.

👉 Step 3: File a Complaint with the Ministry of Labour

• If your employer ignores your appeal, file a complaint with the Labour Office for unfair dismissal.

👉 Step 4: Take Legal Action

• File a case with the Employment and Labour Relations Court (ELRC) for compensation, reinstatement, or damages for unfair termination.

🔍 7. How Ultimate Forensic Consultants Can Help

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

🛡️ Defending Against Unfair Summary Dismissal – Ensuring companies follow proper procedures.
🛡️ Drafting 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 conduct fair disciplinary hearings and avoid wrongful dismissal lawsuits.

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

🧑‍⚖️ 8. Conclusion

✅ Summary dismissal in Kenya is legal only when gross misconduct occurs, but employers must still follow due process.
✅ As an employee, you have the right to appeal, file a legal complaint, or seek compensation if your summary dismissal was unfair.
✅ Employers should protect themselves from wrongful termination lawsuits by ensuring they comply 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’s the difference between summary dismissal and ordinary dismissal?
✅ Summary dismissal is immediate, without notice, and for gross misconduct.
✅ Ordinary dismissal requires notice or payment in lieu of notice.

3. Can I get compensation for unfair 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!