Gross misconduct refers to a serious breach of the employer-employee contract that destroys the trust and confidence essential for a continued working relationship.  It encompasses actions that significantly damage the employer’s reputation, endanger workplace safety, or violate fundamental workplace expectations. 

Examples of Gross Misconduct in Kenya: 

• Absence from duty without permission 
• Unwillingness and inability to perform prescribed duties 
• Incompatible behavior toward the company or the safety and integrity of any member
• Insubordination 
• Use of abusive language, harassment, discrimination, or bullying 
• Gross negligence 
• Wilful damage to or theft of Company property
• Fraud, theft, or misappropriation of Company funds 
• Carrying or being under the influence of drugs or alcohol whilst on company premises or company business 
• Physical assault, threats of violence, or creating a hostile work environment through intimidation 
• Engaging in unwelcome sexual advances, requests for sexual favors, or creating a sexually hostile work environment 
• Disclosing confidential company information or trade secrets 
• Coming to work intoxicated or under the influence of drugs, or being found in possession of illegal substances on company premises 
• Actions that bring the Company into disrepute 

The Employment Act (2007) is the primary legal framework governing employment relationships in Kenya.  Section 44 of the Act empowers employers to dismiss employees without notice or terminal benefits in cases of gross misconduct.  However, the burden of proof lies with the employer to demonstrate that the dismissal was justified and fair. The decision in Kenfreight (EA) Ltd v Benson K Nguti (2016) eKLR is relied upon to urge that the employee is entitled to be heard before termination of employment. 

 

Importance of a Fair Process: 

1. Even with gross misconduct, employers must follow a fair process before dismissal. This includes: 
2. Investigating the allegations: Conducting a thorough and impartial investigation to gather evidence. 
3. Providing the employee with an opportunity to be heard: Allowing the employee to explain their actions and present their side of the story. 
4. Issuing a written notice of dismissal: Clearly outlining the reason for dismissal and the specific allegations of gross misconduct. 

NOTE: Refer to our Article on the Disciplinary Process in Kenya. 

Conclusion 

Gross misconduct is a serious matter with significant consequences for both employers and employees.  Employers must have clear policies and follow fair procedures, while employees should understand their obligations and avoid actions that could constitute gross misconduct.  By promoting a culture of mutual respect and adherence to the law, the workplace can foster a safer, fairer, and more productive environment for all employees.