Legal Insights

Common Mistakes Made By Employers During Summary Dismissal

What is Summary Dismissal?

The conventional meaning of summary dismissal is: terminating employment with less notice or no notice due to gross misconduct. However, this definition does not apply to the Kenyan context where sections 44 (1) and 41 (2) of the Employment Act (2007), require the issuance of a notice and a fair hearing respectively, before an employee can be summarily dismissed.

What are the Common Mistakes Made?

An employer’s impatience to let go of an employee where the employment relationship has irretrievably broken down is understandable. Despite the impatience and anxiety surrounding these circumstances, the law must always be followed. Here are some of the mistakes employers during the summary dismissal process:

  1. Not granting the employee a hearing

Some employers are under the impression that an employee can be hired and fired at any time. However, section 41 requires an employer to afford an employee a hearing before terminating their services. As such, dismissing an employee on a whim, out of anger or just for the sake, amounts to wrongful dismissal and entitles the employee to compensation for wrongful dismissal.

2. Not affording employees procedural fairness.

It is now settled in law that there must be substantive justification and procedural fairness when terminating employment. Substantive justification means the reason for an employer to dismiss the employee is just and fair and within the meaning of sections 41 and 44 (4) of the Employment Act. Procedural fairness involves the procedure adopted by the employer during the process. Sometimes employees are granted a hearing but the process is marred with irregularities like:

  • Not issuing the employee with a notice to show cause/show cause letter – The notice is a document that sets out the details of an alleged offence, the timeframe within which to respond and gives the employee a chance to explain themselves before any action is taken against them. It is a crucial step in the procedure because it gives an employee the opportunity to avoid the disciplinary process where they give a satisfactory response. Not giving the notice denies an employee the possibility of getting such a reprieve.  
  • Not giving the employee ample time to respond to the show cause notice or prepare for the hearing – Giving an employee little or no time to respond to a show cause letter or prepare for the disciplinary hearing, leads to a miscarriage of justice. The length of time an employee needs will depend on the complexity of charges, the allegations made against them and the evidence involved. An employer should always consider this when specifying the time limit for responding to the letter or when setting the hearing date.
  • Not supplying employees with evidence to be relied on – An employee has a right to defend themselves against the allegations made against them. For this to be possible, the charges and the evidence supporting them must be within their knowledge and possession. Not giving employees the evidence that will be relied on at the hearing amounts to procedural unfairness.
  • Denying them a chance to appeal – It is unfair to deny employees an opportunity to appeal a termination decision where they feel aggrieved. Whether the HR policy provides for this or not, giving an employee the leeway to appeal a decision is a key element of fair hearing. This grants them an opportunity to have the decision reviewed for possible errors. A good internal grievance resolution system provides avenues for employees to have decisions against them reviewed.
  • Not giving the employee the investigation report – Where an employee’s conduct is investigated and a report of the findings is written, the report should be availed to them so they can know what to expect at the hearing and prepare. Failure to furnish the report is a breach of section 41 of the Employment Act
  • Having an improperly constituted panel – The composition of a disciplinary committee must be as outlined in the policy or collective bargaining agreement. The panel should consist of the number and individuals with the job titles outlined in the policy. If the policy requires 7 members, then that’s the number that should be present. If the policy indicates that only board members should hear the matter, then non-board members have no business attending the proceedings. In addition, a committee member who has an interest in the matter should not sit in the proceedings because they are conflicted thereby creating an element of bias. Having an improperly constituted panel creates the perception that the hearing was not fair.
  • Not allowing an employee to testify or cross examine witnesses – Cross examination of witnesses by the employee is important because it gives them an opportunity to test the veracity of the testimony. Similarly, allowing an employee to testify gives them an opportunity to give their side of the story. Denying them these, is a miscarriage of justice and inconsistent with the requirements of a right to fair hearing.
  • Not allowing an employee to have a representative present – Having a representative present is a non-negotiable right afforded to an employee by section 41 (1) of the Employment Act which can only be waived by the employee. Blocking the employee’s representative from attending the disciplinary hearing amounts to procedural unfairness. An employer is also required to inform the employee of this entitlement. Failing to do so is a violation of the employee’s right to fair hearing.

3. Not having a valid reason for termination

Section 47 (5) of the Employment Act rests the burden of justifying the grounds for employment termination, on the employer. Further, section 43 (1) of the Act requires an employer to prove the reason(s) for termination. Where they fail to do so, the termination is deemed unfair. As such, an employer must have a justifiable reason for termination before summarily dismissing an employee. Some justifiable reasons include:

  • Poor performance
  • Physical incapacity
  • Gross misconduct which includes the following matters:
  • Absenteeism from work or duty
  • Being unable to perform work duties because of intoxication
  • Neglecting to or improperly performing duties
  • Insulting the employer or someone placed in authority
  • Disobeying lawful and/or proper commands
  • Committing or being suspected of committing an offence against the employer or to the detriment of their property
  • Being arrested and remaining in custody for more than 14 days

4. Not having minutes of the disciplinary proceedings

There are instances where an employer insists that an employee was heard while the employee denies this. Minutes of the disciplinary proceedings not only prove that the hearing did happen, but also outlines details of what occurred. Not having minutes to support the assertion puts the employer in “he said, she said” position, leaving the determination of that particular fact to the court. It is also important to have the minutes signed by the employee as proof that they read the minutes and agree with its content. It is also an indicator that they attended the disciplinary proceedings.

5. Refusing to pay employees their dues

An employee is entitled to receive payment for what they are entitled to under their employment contract. Section 17 (1) of the Employment Act requires an employer to pay an employee the entire amount of the wages earned by or payable to them for work done. An employee must therefore receive their final dues at the time of termination unless lawful deductions such as surcharge for damaging the employer’s property, are made.

6. Not conducting exit interviews

Exit interviews are important because they help the employer assess their practices and procedures, to identify the non-compliant areas and those that need improvement. They give an in-depth look into the processes, organizational culture, employee motivation and management solutions. Majority of the employees exiting an organization are usually honest and forthcoming about their feelings towards the organization and their time there. Consequently, the feedback given is constructive hence instrumental in changing practices that expose the employer to risk of claims for unfair termination or unfair labour practices.

Conclusion

Employers should strive to avoid these mistakes because it may cost them money in terms of court fees, legal fees and compensation where the termination is deemed unfair. It also wastes their time and affects the quality of their evidence, where the case takes long as they are likely to lose their witnesses.

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