By Perminus Wainaina,
Ever been tempted to fire an employee on the spot but you were not sure whether the law allowed it or not?
Section 44 of the employment ACT 2007 states that as an employer, you can only dismiss your employee without legally notifying them if they commit an act of ‘gross misconduct.’
But first, let’s understand what constitutes gross misconduct in Kenya…
Gross misconduct is an act that destroys the relationship of trust and confidence between you and your employee, making your working relationship impossible to continue.
This then calls for an immediate action which in this case is immediate dismissal.
The employment ACT allows you to dismiss the employee who acts this way summarily.
What then is summary dismissal?
Simply put; summary dismissal is terminating an employee contract without giving them a notice period.
The summary dismissal law is provided for in section 44 of the employment ACT, and it is what leads to the discussion on gross misconduct.
The section proceeds to give examples of instances when gross misconduct may lead to summary dismissal.
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For instance, Section 44 sub-section 4 (a) provides that if without leave or other lawful cause an employee absents himself from work or from a place appointed for the performance of his work, then he or she may be summarily dismissed.
Also, it says that if that employee willfully neglects to perform any work given to him, or if he carelessly and improperly performs the work which from its nature it was his duty, under his contract then you can also summarily dismiss him/her.
However, you should be careful to differentiate between acts of negligence and those of gross misconduct.
For instance, with reference to the KNH Confusion some days ago, this occurrence can be regarded as a case of medical negligence/Malpractice.
However, if the doctor knowingly conducted the operation on the wrong patient with his own malicious motives, then we could have justified this as a case of gross misconduct.
Different acts of gross misconduct can also include;
Offensive behaviour like violence or sexual harassment, misconduct caused by an excess of alcohol or drugs at work, behaving in a manner that is insulting to you as the employer or any other person placed in authority over him/her among others.
After being dismissed under these instances, an employee is only entitled to accrued leave days and salary for the days he/she worked before the employment was terminated.
It’s important to note that such cases will always come up and as an employer you need to be well versed and with ready measures that are in line with the labour laws of Kenya to ensure that discipline is maintained in your organization.
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