WHAT IS SUMMARY DISMISSAL?

“Summary dismissal is termination of employment without notice, or with less notice than is given in the statute or the contract of employment.” Justice Rika in Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute [2016] eKLR.

Normally, when the employer – employee relationship is being terminated, there is a notice period. If the employer is the one ending the relationship, then he must issue a notice to the employee. If it is the employee ending the relationship, then he must issue a notice to the employer indicating that they will be leaving employment. The notice period in a written contract must be specified. Where it is not specified, then Section 35 of the Employment Act provides for the notice period applicable.

Summary dismissal takes place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. (Section 44 (1) of the Employment Act)

WHEN CAN AN EMPLOYEE BE SUMMARILY DISMISSED?

An employer may dismiss an employee summarily when the employee has by his conduct fundamentally breached his obligations arising under the contract of service.

WHAT CONDUCT CAN LEAD TO SUMMARY DISMISSAL?

An employee may do something or fail to do something, which conduct constitutes a breach of contract. Some examples of such conduct may be in the contract of employment, others are in the Employment Act. Other conduct may not be in the contract or in the Act but common sense may be applied to see whether it amounts to gross misconduct: whether the conduct may injure or threaten someone or the reputation and profitability of the company. The Act lists the following examples of actions that may lead an employee to be summarily dismissed:

  • Where the employee without leave or other lawful cause, absents himself from the place appointed for the performance of his work;
  • Where an employee, during working hours, by becoming or being intoxicated, renders himself unwilling or incapable to perform his work properly;
  • Where an employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly;
  • Where an employee uses abusive or insulting language, or behaves in a manner insulting, to his employer or to a person placed in authority over him by his employer;
  • Where an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
  • Where in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognizable offence punishable by imprisonment and is not within fourteen days either released on bail or on bond or otherwise lawfully set at liberty; or
  • Where an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his employer or his employer’s property.

WHAT IS THE PROCEDURE FOR SUMMARY DISMISSAL?

For a termination by Summary Dismissal to be legal, the employer must follow the correct procedure. If the correct procedure is not followed, the employee may have a case for unfair termination.

The correct procedure for termination includes:

  1. Investigation: the employer should investigate the circumstance of the employee’s gross misconduct, confirm what role the employee played, get evidence or proof where possible before deciding to terminate summarily. During investigation, where there is ready proof that the employee has committed an act of gross misconduct, the employee may be suspended.
  2. Fair warning: the employer should invite the employee to a meeting to discuss his misconduct and to inform him of the termination. The notice of this meeting should give the employee time to prepare a defence if one is available, rather than ambushing him.
  3. Support: the employee should be made aware that he is allowed to have a representative (another employee) or witness at the meeting. If he belongs to a Union, the representative of his choice should be present.
  4. Hearing: the employer should hear and consider the employee’s side of the story before effecting summary dismissal. The hearing should not appear to have a pre-judged decision. It should consider the facts presented before it and company policy. The punishment should be proportional to the offence. If the employer is found to have caused the employee to behave in the way he did, the dismissal would be unfair.
  5. Documentation: the employer should make sure that the minutes of the meeting, witness statements, any documentary evidence are prepared and neatly filed for future reference eg. If the summary dismissal is challenged.
  6. Formal letter of Termination: the employer should prepare a letter of Summary Dismissal stating clearly:
  1. the reason for dismissal,
  2. the legal basis for gross misconduct,
  3. any prior warnings,
  4. the termination date
  5. ineligibility for notice or a pay in lieu of notice,
  6. leave pay where applicable
  7. when the final salary payment shall be made
  8. instructions to return company property
  9. right of appeal

CAN AN EMPLOYEE CHALLENGE THE EMPLOYER’S DECISION TO SUMMARILY DISMISS HIM?

Under Section 47 of the Employment Act where an employee has been summarily dismissed from his employment without justification, the employee may, within three months of the date of dismissal, present a complaint to a labour officer or take the case to the Employment and Labour Relations Court. If however, you were summarily dismissed during the Probation Period, you do not have the right to make a complaint.

WHAT AWARD AM I LIKELY TO GET IF THE SUMMARY DISMISSAL IS FOUND TO HAVE BEEN UNJUSTIFIED?

  • Reinstatement in the same position or comparable position at the same wage (Where appropriate).
  • The wages which you would have earned if you had been given notice of termination
  • If it was a fixed period contract then the wages you would have earned for the period remaining on the contract; and any other loss as arising from the dismissal between date of dismissal and expiry of notice period you would have been entitled to.
  • The equivalent of a number of month’s wages not exceeding 12 months based on the gross monthly wage at the time of dismissal.
  • Certificate of Service

These monies shall be subjected to the statutory deductions e.g. PAYE.

Where Summary Dismissal is challenged whether in court or at the Labour Office, the employee must prove that he was treated unfairly in the dismissal, while the employer is put to task to show that the summary dismissal was justified. The documentation and proof of proper procedure would be key for the employer to succeed.

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