Gross misconduct and summary dismissal in Kenya: Section 44 explained
Photo: PexelsSection 44 of the Employment Act, 2007 allows summary dismissal, meaning dismissal without notice, when an employee's conduct shows a fundamental breach of the contract. Section 44(4) lists conduct that may amount to gross misconduct. Section 41(2) still requires the employer to hear and consider the employee's response first.
This guide covers what section 44 allows, the seven listed grounds, and the procedure that keeps a summary dismissal defensible.
What summary dismissal means
Section 44(1) defines summary dismissal as termination "without notice or with less notice than that to which the employee is entitled" under statute or contract.
Section 44(2) sets the starting point: subject to the section, "no employer has the right" to terminate without the notice the employee is entitled to.
Section 44(3) is the exception: an employer "may dismiss an employee summarily when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service".
So summary dismissal is about notice. It lets you end the contract without the notice period, for a fundamental breach. It says nothing about skipping the hearing.
The Section 44(4) list: what may amount to gross misconduct
Section 44(4) says that any of the following "may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause". In plain words:
| Clause | Conduct (paraphrased from the Act) | Example |
|---|---|---|
| (a) | Absence from the place of work without leave or other lawful cause | Otieno stays away for a week with no leave and no contact |
| (b) | Becoming or being intoxicated during working hours, so the employee is unwilling or unable to work properly | A driver reports for a shift unfit to drive |
| (c) | Wilfully neglecting work, or carelessly and improperly performing work that should have been done carefully | A nurse repeatedly skips required checks |
| (d) | Abusive or insulting language, or insulting behaviour, towards the employer or a person in authority | Shouting insults at a supervisor in front of customers |
| (e) | Knowingly failing or refusing to obey a lawful and proper command within the scope of the employee's duty | Refusing a lawful safety instruction |
| (f) | Being arrested for a cognizable offence punishable by imprisonment and not released on bail, bond or otherwise within fourteen days | An employee held in custody beyond fourteen days |
| (g) | Committing, or on reasonable and sufficient grounds being suspected of committing, a criminal offence against or to the substantial detriment of the employer or its property | Halima is suspected, on CCTV and stock records, of taking stock |
Two points about the list
It is not closed. Section 44(4) says the list does not stop either side from arguing whether "any other matters not mentioned in this section" are lawful grounds. Your policy can name other serious offences, such as fraud or sexual harassment, but you must still show a fundamental breach.
It is not automatic. The word is "may". The same section says the list, or the employer's decision, does not prevent the employee from "disputing whether the facts giving rise to the same" justify dismissal. You must still prove the facts (section 43) and that dismissal was fair in all the circumstances (section 45(4)(b)).
Note clause (g): reasonable and sufficient suspicion can be enough. That makes the investigation and the hearing more important, not less, because they are how you show your grounds were reasonable.
Section 41 still applies before summary dismissal
This is the most common and most expensive mistake. Section 41(2) reads:
"Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make."
The Act names summary dismissal expressly. Serious misconduct can justify no notice. It never justifies no hearing.
Summary dismissal procedure, step by step
- Secure the situation. If the employee's presence is a risk, suspend under your contract and policy. State in writing that suspension is not a finding of guilt. (Good practice; the sections covered here do not regulate suspension.)
- Investigate. Collect records, footage and statements. Section 43(2) asks what you "genuinely believed to exist" at the time, so write down what you found.
- Explain the allegation. Section 41(1) requires you to explain the reason, in a language the employee understands. A show cause letter is the usual way. Name the section 44(4) clause or contract term you rely on.
- Allow a companion. The employee may bring another employee or a shop floor union representative (section 41(1)).
- Hold the hearing. Present the evidence and hear the employee fully (section 41(2)).
- Adjourn and decide. Weigh the response. Section 45(5) lets the court consider your previous practice in similar cases and any previous warning letters. Ask whether a lesser sanction fits.
- Write the outcome. State the decision, the facts found and the section 44 ground. Offer an internal appeal. Issue a certificate of service (section 51).
For the full process, see The disciplinary process in Kenya: Section 41 step by step.
What happens if you get it wrong
- Burden on you. Under section 43 you must prove the reason. Under section 45(2) you must also prove fair procedure, or the termination is unfair.
- Complaints. A summarily dismissed employee may complain to a labour officer within three months (section 47(1)), in addition to going to the Employment and Labour Relations Court (section 47(3)).
- Remedies. Section 49 allows notice pay, reinstatement, re-engagement, or compensation of up to twelve months' gross pay. Section 50 says the court is guided by section 49.
A short example
Halima, a cashier, is suspected of taking cash after the till comes up short three times. Her manager, Kamau, wants her out that afternoon. Instead, HR suspends her on full pay, pulls the till records and CCTV, and serves a letter setting out the three dates and citing section 44(4)(g). At the hearing, with a colleague present, Halima explains that another cashier used her login on two of the dates. The investigation reopens. If HR had dismissed on the spot, that explanation would never have been heard.
Train managers before the next incident
Summary dismissals usually go wrong in the first hour, when a manager acts alone. Nanto Academy's online course Disciplinary Action in Kenya trains managers to classify misconduct and follow section 41. Professionalism at Work sets the conduct standards behind it.
Sources
- Employment Act, 2007 (Cap. 226), Kenya Law, version of 26 April 2024: sections 41, 43, 44, 45, 47, 49, 50 and 51.
This guide explains the law in general terms. It is not legal advice for a specific case.
Common questions
What constitutes gross misconduct in Kenya?
Section 44(4) of the Employment Act lists conduct that may amount to gross misconduct, including absence without leave or lawful cause, intoxication at work, wilful neglect or careless work, abusive language, refusing a lawful command, arrest without release within fourteen days, and a criminal offence against the employer. The list is not exhaustive, and the employee can dispute it.
What are the reasons for summary dismissal in Kenya?
Section 44(3) allows summary dismissal when the employee's conduct shows a fundamental breach of their obligations under the contract of service. The seven matters in section 44(4) are examples that may amount to gross misconduct. Other conduct can also qualify, but the employer must prove the reason under section 43.
Do I need a hearing before summary dismissal?
Yes. Section 41(2) expressly requires the employer to hear and consider the employee's representations before summarily dismissing under section 44(3) or (4). Summary dismissal removes the notice period. It does not remove the hearing. Explain the allegation, allow the employee's chosen colleague or shop floor union representative to attend, and record what was said.
Can I dismiss an employee on the spot for theft?
No. Suspected theft may fall under section 44(4)(g), but section 41 still requires you to explain the reason and hear the employee first. Suspend if needed under your policy, investigate, serve the allegation in writing, hold the hearing, then decide. On-the-spot dismissal risks a finding of unfair termination.
How long does an employee have to complain about summary dismissal?
Under section 47(1), an employee who is summarily dismissed may complain to a labour officer within three months of the date of dismissal. That is in addition to the right to go to the Employment and Labour Relations Court under section 47(3).