Summary dismissal is one of the most consequential decisions that can be made in an employment relationship. For employers, it is a disciplinary tool intended to protect the workplace from gross misconduct. For employees, it is often experienced as sudden loss of livelihood, reputation, and stability. In Mombasa, these disputes commonly arise in hospitality, logistics, private security, construction, retail, and professional workplaces—especially where timekeeping, safety, cash handling, inventory, and chain-of-command are critical.
Under Section 44 of the Employment Act, an employer may summarily dismiss an employee where the employee’s conduct shows a fundamental breach of the contract of service. However, summary dismissal is not a free pass to terminate without accountability. The fairness test under Section 45 still applies, meaning the employer must prove both a valid reason and a fair process.
This article explains the legal meaning of summary dismissal, the statutory grounds under Section 44, and the substantive and procedural requirements that employers and employees in Mombasa must understand when handling disciplinary separation.
What Summary Dismissal Means Under Kenyan Law
Summary dismissal occurs when an employer terminates employment without notice, or with less notice than the employee is entitled to under the law or contract. It is intended for serious cases where continued employment becomes untenable because trust has been broken, duties have been abandoned, or the employee’s conduct exposes the employer to significant loss or operational risk.
It is important to distinguish summary dismissal from ordinary termination. Ordinary termination may occur on notice, often linked to performance, operational needs, or restructuring. Summary dismissal, on the other hand, is an immediate disciplinary sanction reserved for gross misconduct, and it is heavily scrutinized by the Employment and Labour Relations Court (ELRC) when challenged.
Grounds for Summary Dismissal Under Section 44 (Gross Misconduct)
Section 44 sets out several matters that may amount to gross misconduct and justify summary dismissal for lawful cause. These include:
- Absence from the place appointed for performance of work without leave or lawful cause.
- Becoming or being intoxicated during working hours such that the employee is unwilling or incapable of performing work properly.
- Wilfully neglecting to perform work which it was the employee’s duty to perform, or carelessly and improperly performing work which ought to have been done carefully and properly.
- Using abusive or insulting language, or behaving in a manner insulting to the employer or a person placed in authority by the employer.
- Knowingly failing or refusing to obey a lawful and proper command within the scope of duty, issued by the employer or a supervisor.
- Being arrested for a cognizable offence punishable by imprisonment and not being released on bail/bond or otherwise lawfully set at liberty within fourteen (14) days.
- Committing, or on reasonable and sufficient grounds being suspected of having committed, a criminal offence against or to the substantial detriment of the employer or the employer’s property.
These statutory grounds are central to most summary dismissal disputes. However, employers must still prove that the facts fall within these categories, and that dismissal was a proportionate response.
Section 45: Summary Dismissal Must Still Pass the Fairness Test
Even where the employer relies on Section 44, the dismissal must still satisfy Section 45, which sets the threshold for fairness. Section 45(2) provides that termination is unfair if the employer fails to prove that the reason was valid, the reason was fair, and the termination was carried out in accordance with fair procedure.
This requirement means that summary dismissal is assessed in two separate dimensions. First, the employer must show substantive justification, meaning there was a valid and fair reason related to misconduct, capacity, compatibility, or operational requirements. Second, the employer must demonstrate procedural fairness, meaning the employee was treated fairly through a lawful disciplinary process before separation.
Kenyan courts repeatedly confirm that a dismissal only passes the legal standard where both substantive justification and procedural fairness are present.
Substantive Requirements: Employers Must Prove the Reason
The substantive requirement is straightforward in law but demanding in practice. The employer must prove that the alleged misconduct occurred and that it justified dismissal. A termination cannot stand on suspicion, rumours, or general dissatisfaction. Employers must show a reasonable factual basis, supported by credible evidence such as written records, witness statements, audit findings, CCTV footage where available, and properly documented investigations.
This is especially relevant in Mombasa workplaces where disputes arise around cash handling, fuel accountability, missing stock, and operational negligence. The employer must demonstrate not only loss or wrongdoing, but also the link between the employee and the misconduct, and the seriousness of the breach.
Procedural Requirements: Fair Process is Not Optional
The procedural requirement is often where employers lose otherwise strong cases. Even with a valid reason, the employer must demonstrate that the employee was treated fairly, given notice of allegations, and allowed an opportunity to respond.
The ELRC has consistently emphasized that fairness entails a process that is not cosmetic. The hearing must be genuine, the employee must understand the allegations, and the employer must consider the response before making a decision. Where an employer dismisses instantly without hearing, or conducts a rushed meeting after the decision is already made, the dismissal is vulnerable to being declared unfair.
Practical Risk for Employers in Mombasa: Why Proper Procedure Protects Your Business
Employers often view procedure as “technicalities,” but procedure is actually risk control. A proper process protects management from claims of bias, discrimination, victimization, and wrongful termination. It also protects the organization’s reputation and reduces the cost of litigation, especially where the employee lodges a complaint at the Labour Office or files a claim at the ELRC.
A well-handled disciplinary process also strengthens the employer’s case where the employee seeks remedies for unfair termination, including compensation.
What Employees in Mombasa Should Know When Summarily Dismissed
Employees should know that summary dismissal is not automatically lawful simply because it is labelled “gross misconduct.” The employer must prove the reason and prove fairness.
If you are dismissed without being informed of allegations, without a hearing, or without being allowed to respond, you may have grounds to challenge the dismissal. Employees should retain key documents and communications, including their contract, payslips, HR policies, dismissal letters, show cause notices, and messages relevant to the disciplinary allegations.
Summary Dismissal Lawyers in Mombasa: When to Seek Legal Help
For employers, the best time to seek legal guidance is before issuing a summary dismissal letter, especially where the misconduct involves alleged criminal wrongdoing, dishonesty, or serious negligence. For employees, legal advice is critical immediately after dismissal, particularly where the termination was abrupt, undocumented, or procedurally flawed.
Summary dismissal cases are highly evidence-driven, and outcomes turn on documents, process, and the employer’s ability to justify both the decision and the procedure under Sections 44 and 45.
Need Legal Guidance on Summary Dismissal in Mombasa?
If you are an employer seeking compliant disciplinary termination, or an employee challenging an unfair dismissal, professional support ensures that the matter is approached strategically, lawfully, and with the seriousness it deserves.
For tailored advice on summary dismissal, unfair termination claims, show-cause notices, disciplinary hearings, and ELRC litigation in Mombasa and across the Coast region, consult experienced employment lawyers who understand both the law and the practical realities of workforce management.
