Introduction
Summary dismissal is one of the outcomes of  employment disputes. It refers to the immediate termination of an employee’s contract by the employer without notice. Alternatively, it can occur with less notice than the employee is entitled to. Summary dismissal is considered due to gross misconduct. In Kenya the legal basis for summary dismissal is governed by Section 44 of the Employment Act, 2007. The Act highlights that summary dismissal must  involve a valid reason and fair hearing.

Justifiable Grounds for Summary Dismissal
They include:
1. Theft or attempted theft
2. Fraud or dishonesty
3. Gross insubordination
4. Drunkenness at work
5. Willful neglect of duty
6. Assault at the workplace
7. Habitual absenteeism or lateness
8. Breach of confidentiality

These grounds can be valid. Still, it’s not uncommon for employees to win court cases. This happens even after employers claim to have followed proper disciplinary procedures before dismissal.

This article explores why this happens and outlines the legal process an employee follows to reach court after dismissal.

Why Employees Win Disciplinary Cases in Court

1. Procedural Fairness Vs Substantive Fairness

• Employers can follow the correct process. They will give notice or offer a hearing to the employee. Nonetheless, they often fail to justify the reason for dismissal.

• The Courts will look at both how and why the dismissal was done.

2. Weak or Unproven Grounds

• Employers must prove misconduct or poor performance.

• Lack of solid evidence can lead to rulings in favor of the employee.

3. Violation of Employment Law or Contract
Employers may breach:

• The Employment Act

• Employment contracts

• Collective Bargaining Agreements (CBAs)

4. Inconsistency or Bias

• Disparate treatment of employees or a biased disciplinary panel can void the dismissal.

5. When Natural Justice is Denied
Rules of natural Justice require:

• Provision of a chance to respond

• The right to a witness

• The right to prior notice

6. Disproportionate Sanction

• The Courts can look at the  dismissal and that it was too harsh for the offense.

7. Improper Documentation

• Employers often fail to keep proper records of  warning letters or  appraisals.

• Without proper documentation the courts will rule in favor of the employee.

How an Employee can Approach Court After Dismissal

Step 1: Internal Grievance Resolution
First attempt to resolve the issue internally:
• Work on the HR complaints
• Appeal any decision made
• Seek for mediation within the organization

Step 2: Conciliation at Labour Office.
• Submit your complaint at the Ministry of Labour offices near you.
• Let the labour officer attempt mediation.
• If unresolved, the labor officer will issue a Certificate of Unresolved Dispute.

Step 3: Involve the Trade Union  if applicable
The purpose of involving the union is to:
• Represent the employee
• Engage the employer under CBA
• Escalate the issue to a higher level

Step 4: Filing a Case at Employment and Labour Relations Court (ELRC).
If the matter remains unresolved through the stages, the employee will file a Statement of Claim. The employer will then file a response. Both parties must submit their evidence, such as contracts, warnings, and reports.

Step 5: Pre-Trial & Hearing
After the filing:
• A pre-trial conference is held. This narrows issues and explores possibilities of a settlement.
• If there is no settlement, a hearing is scheduled.

Step 6: Judgment and Remedies
The court can issue these remedies:

• Reinstatement
• Compensation of up to 12 months’ salary
• Award costs

Appeals
Incase one part fails to accept the ruling they can appeal to:
• Court of Appeal on points of law

• Supreme Court in exceptional cases

Time Limit for Claim:
All claims must be filed within 3 years from the date of dismissal. This is based on the Kenya Employment Act, Section 90.

Conclusion
It is important to understanding that employees do win dismissal cases. Employers must understand the legal process involved. Employers must uphold labor laws and avoid costly legal outcomes. Fairness, documentation, and legal compliance are key to any court case.