Summary Dismissal vs. Termination in Kenya: Key Differences Explained
When an employee leaves a company, the process could be a summary dismissal or a termination—but these two terms aren’t the same! Understanding the differences is critical for both employees and employers, especially when it comes to notice periods, payments, and legal rights.
At Ultimate Forensic Consultants, we help individuals and companies navigate dismissals and terminations legally and fairly. Let’s break it down!
⚖️ 1. What is Summary Dismissal in Kenya?
✅ Summary dismissal is the immediate termination of employment without notice or pay in lieu of notice, typically due to gross misconduct.
👉 It’s governed by Section 44 of the Employment Act, 2007.
👉 Used when an employee’s behavior makes it impossible to continue the employment relationship.
✨ Examples of gross misconduct that warrant summary dismissal:
- Theft or fraud.
- Assault or physical violence.
- Chronic insubordination or refusal to perform duties.
- Being intoxicated at work.
- Willful damage to company property.
⚠️ Key Point: Summary dismissal happens instantly, but employers must still follow due process (e.g., a disciplinary hearing).
⚖️ 2. What is Termination in Kenya?
✅ Termination is the ending of an employment contract with proper notice or payment in lieu of notice, either by the employer or employee.
👉 It’s governed by Section 35 of the Employment Act, 2007.
👉 Used for less severe reasons than gross misconduct, such as:
- Redundancy.
- Poor performance after warnings.
- End of a contract.
- Restructuring or company closure.
✨ Notice Period Requirements (Section 35):
- Weekly pay: 7 days’ notice.
- Monthly pay: 1 month’s notice.
- Or, payment in lieu of notice.
⚠️ Key Point: Termination requires the employer to provide reasons, follow fair procedures, and issue a termination letter.
🔍 3. Key Differences Between Summary Dismissal and Termination
| Aspect | Summary Dismissal | Termination |
|---|---|---|
| Reason | Gross misconduct (theft, violence, negligence). | Performance issues, redundancy, contract expiry. |
| Notice Period | No notice required. Immediate dismissal. | Requires notice (7 days to 1 month) or payment in lieu of notice. |
| Payment Entitlement | – Salary for days worked up to dismissal. – Accrued leave days. – Overtime earned. – Certificate of service. | – Salary for days worked. – Accrued leave. – Payment for notice period. – Severance pay (in redundancy cases). |
| Due Process | Mandatory disciplinary hearing before dismissal. | Must provide reason for termination in writing. |
| Legal Protection | Must be based on gross misconduct and proven with evidence. | Termination without fair reason or process can be challenged as unfair dismissal. |
| Right to Appeal | Yes, employees can appeal summary dismissal. | Yes, employees can appeal termination for unfairness or wrongful dismissal. |
🚩 4. When is Summary Dismissal Appropriate?
✅ Summary dismissal is appropriate when:
- The misconduct is serious enough to break the trust required for continued employment.
- The employer follows proper disciplinary procedures before dismissing the employee.
🚫 Not appropriate for:
- Poor performance without prior warnings or improvement plans.
- Minor infractions that don’t justify immediate termination.
🚩 5. When is Termination Appropriate?
✅ Termination is appropriate when:
- The employer provides a valid reason (e.g., redundancy or performance issues).
- Proper notice or payment in lieu of notice is given.
- The employer follows the company’s internal termination policies.
🚫 Not appropriate for:
- Terminating without a valid reason.
- Firing someone without providing notice or final payments (unless it’s summary dismissal).
🛡️ 6. Employee Rights After Summary Dismissal vs. Termination
| Right/Entitlement | Summary Dismissal | Termination |
|---|---|---|
| Final Paycheck | Salary up to the date of dismissal. | Salary up to termination date plus notice pay (if applicable). |
| Leave Days | Paid for any accrued leave days. | Paid for any accrued leave days. |
| Notice Pay | ❌ Not entitled to notice pay. | ✅ Entitled to notice pay or payment in lieu of notice. |
| Severance Pay | ❌ Not entitled to severance pay. | ✅ Entitled (in redundancy cases). |
| Certificate of Service | ✅ Must be provided, regardless of reason for dismissal. | ✅ Must be provided, regardless of reason for termination. |
| Appeal Rights | ✅ Can appeal unfair summary dismissal. | ✅ Can appeal unfair or wrongful termination. |
💼 7. What to Do If You’re Summarily Dismissed or Terminated Unfairly
👉 Step 1: Request a Termination Letter
- Ask for a formal letter explaining why you were dismissed or terminated.
- If your employer refuses, request it via email or in writing.
👉 Step 2: File an Internal Appeal
- Most companies allow you to challenge dismissal or termination 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 or termination.
👉 Step 4: Take Legal Action
- File a case with the Employment and Labour Relations Court (ELRC) for compensation, reinstatement, or damages for unfair termination.
🏆 8. How Ultimate Forensic Consultants Can Help
At Ultimate Forensic Consultants, we help employees and employers with:
🛡️ Defending Against Unfair Summary Dismissal or Termination – Ensuring companies follow proper procedures.
🛡️ Drafting Appeal Letters – Highlighting legal violations and procedural errors.
🛡️ Filing Legal Claims for Unfair Dismissal or Termination – Representing employees in court to seek compensation or reinstatement.
🛡️ Providing Legal & HR Support to Employers – Helping companies conduct fair disciplinary hearings and avoid wrongful termination lawsuits.
📞 Facing a dismissal or termination? Let us help you get justice! Contact Ultimate Forensic Consultants today!
🎯 9. Conclusion
✅ Summary dismissal in Kenya is for gross misconduct and happens immediately—without notice pay—but must still follow due process.
✅ Termination requires proper notice or payment in lieu of notice, valid reasons, and a fair process.
✅ Both summary dismissal and termination can be challenged if unfair, discriminatory, or wrongful.
📞 Need help with a dismissal or termination 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!