Whether the conduct or grounds in question is serious enough to warrant

dismissal is always a question of fact in each case, and the standards to be

applied are those of the current social conditions not those which may have
become somewhat outdated.

Subject to section 44(1) Summary dismissal Occurs where dismissal takes

place without notice or with less notice than that employee is entitled by any
statutory provision or terms of contractual covered under section 44 of the
Employment Act.

Section 44(2), no employer has the right to terminate a contract of service

without notice or with less notice than that to which the employee is entitled
by any statutory provision or contractual term. In CMC Aviation Limited v
Mohammed Noor [2015] eKLR , this appeal rose from the judgment of the
Industrial Court of Kenya at Nairobi in Cause No. 919 of 2010 where Captain
Mohamed Noor, was the claimant against CMC Aviation Limited. In his
statement of claim before the trial court, the respondent stated that via a
contract of employment executed on 21st January, 2008 between him and the
appellant, he was employed on a two year contract as a Chief Pilot on a
monthly salary of US$9000. The contract of employment was terminable by
either party giving one months notice or one months salary in lieu thereof.
The respondent could also be summarily dismissed from his employment on
any of the grounds contained in clause 7 of the said contract. In October 2008
the respondent was demoted from the position of Chief Pilot to Line Captain
and his salary was reduced to a sum of US$5075 per month or the equivalent
of Kshs.406,000/= at an exchange rate of Kshs.80 to the dollar. The respondent
continued to work in that position until 15thJanuary, 2010 when his services
were suspended to pave way for investigations following an airplane accident
that took place on 15th January, 2010 in Congo.

On 30th March, 2010 the respondent received a letter of summary dismissal on

the ground that he had used abusive and insulting language against the
appellants Human Resources Manager, an allegation which he denied.

The learned judge held that the summary dismissal of the respondent from his
employment was in violation or contravention of the Industrial Relations
Charter, the provisions of the International Labour Organization (ILO)
Convention Nos. 98 and 135 as well as principles of natural justice. The court
further held that the appellant did not observe statutory provisions of
summary dismissal as provided under Section 44 of the Employment Act,
2007. The summary dismissal therefore amounted to unfair labour practice,
the learned judge held.Being dissatisfied with the said judgment, the appellant
preferred an appeal to this Court. The memorandum of appeal consists of nine
grounds which are as follows: The learned judge erred in law in holding that
the respondents summary dismissal was unfair and illegal and therefore null
and void when in fact; the appellant was entitled to dismiss the respondent
under section 44 (4) (d) of the Employment Act, 2007, the respondent himself
admitted to the use of derogatory and abusive language to the Human
resource Manager, which led to his dismissal. The appellant notified the
respondent of the grounds of his dismissal, which grounds were not
challenged. The learned judge erred in declaring the dismissal as null and void,
when only a procedural step was omitted in the dismissal process. Such
omission would only result in a wrongful but not unfair or illegal dismissal, and
would entitle the respondent to only a pay in lieu of notice. The learned judge
erred in law by failing to consider that the appellant has a right to dismiss an
employee without notice, and that such dismissal could not and cannot be
illegal, null and void.

In determining the first issue, that is; whether the appellant was justified to
summarily dismiss the respondent from his employment, the starting point is a
consideration of the provisions of section 44 of the Employment Act. It
provides that summary dismissal takes place when an employer terminates the
employment of an employee without notice or with less notice period than to
which the employee is entitled by any statutory provision or contractual term.
Subsection (3) thereof enables an employer to dismiss an employee summarily
when the employee has by his conduct indicated that he has fundamentally
breached his obligation arising under the contract of service. Subsection (4)
sets out various acts that may amount to gross misconduct so as to justify
summary dismissal.

Section 44 (4) (d) is what the appellant herein relied upon in summarily
dismissing the respondent. Such disciplinary action is justifiable if:
(d) 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. . In view of the foregoing, the court found that the appellants act
of summarily dismissing the respondent from its employment without giving
him an opportunity to be heard amounted to unfair termination as defined
under section 45 of the Employment Act.

Therefore, the act by Mount Kenya University in summarily dismissing the

petitioner without giving him an opportunity to heard amounted to unfair
termination .

Termination against rules of natural justice

Natural justice is about the concept of fairness encapsulated in an old adage:

justice should be done and be seen to be done. There are two primary rules
underlying the concept of natural justice.

Audi alteram partem ; a person whose interests will be affected by the

decision should be given a hearing before that decision is made. This rule is
entrenched in the constitution of Kenya 2010 under Article 47, 50 and 51.

This principles is also to be observed by employers subject to section 41 of the

employment Act. In . In KENYA UNION OF COMMERCIAL FOOD AND ALLIED
WORKERS V MERU NORTH FARMERS SACCO LIMITED, [2013] eKLR, the
Industrial Court held that whatever reason or reasons that arise to cause an
employer to terminate the services of an employee, that employee must be
taken through the mandatory process as outlined under section 41 of
the Employment Act

4 Fair administrative action

7
(1) Every person has the right to administrative action that is expeditious,
.
efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be

 adversely affected by administrative action, the person has the right to
be given written reasons for the action.

( Parliament shall enact legislation to give effect to the rights in clause (1)
3 and that legislation shall
)
( provide for the review of administrative action by a court or, if
a appropriate, an independent and impartial tribunal; and
)

(b promote efficient administration.

)

5 Fair hearing
0
(1) Every person has the right to have any dispute that can be
.
resolved by the application of law decided in a fair and
public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which
includes the right

(a) to be presumed innocent until the contrary is proved;

(b) to be informed of the charge, with

sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a

defence;

(d) to a public trial before a court

established under this Constitution;

(e) to have the trial begin and conclude without

unreasonable delay;

(f) to be present when being tried, unless the conduct of

 the accused person makes it impossible for the trial to
proceed;

(g) to choose, and be represented by, an advocate, and to

be informed of this right promptly;

(h) to have an advocate assigned to the accused person by

the State and at State expense, if substantial injustice
would otherwise result, and to be informed of this
right promptly;

(i) to remain silent, and not to testify during the

proceedings;

(j) to be informed in advance of the evidence the

prosecution intends to rely on, and to have reasonable
access to that evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence;

(m) to have the assistance of an interpreter without

payment if the accused person cannot understand the
language used at the trial;.

5 Rights of persons detained, held in custody or imprisoned

1
(1) A person, who is detained, held in custody or imprisoned
.
under the law, retains all the rights and fundamental
freedoms in the Bill of Rights, except to the extent that any
particular right or a fundamental freedom is clearly
incompatible with the fact that the person is detained,
held in custody or imprisoned.
nemo iudex in causa sua - no one shall be judged in his own case; the decision
maker must be unbiased. This principle is promoted under Article 48

48. Access to justice

The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice.

All this principles were violated by the employer hence the termination should
be declared procedurally unfair and unlawful thus null and void.