By Kenya Today Team An internal disciplinary code used by Market Dimension Limited has raised serious questions over the severity of sanctions imposed on workers, with employees facing dismissal or summary dismissal for offences ranging from using abusive language and making unauthorised statements to the media to participating in industrial action. Documents reviewed by Kenya Today reveal a detailed disciplinary regime containing dozens of offences and corresponding penalties. While several provisions deal with legitimate and serious workplace concerns such as fraud, theft, assault, sexual harassment, sabotage and gross negligence, other rules cast a remarkably wide net over employee behaviour and prescribe dismissal for a first offence. A review of the document against Kenya's employment laws shows an important distinction that employees need to understand. Companies are entitled to formulate disciplinary policies and serious misconduct can justify summary dismissal, but an internal disciplinary code cannot override statutory protections contained in the Employment Act. In particular, Section 41 establishes procedural protections where termination is contemplated on grounds of misconduct, poor performance or physical incapacity. Kenyan courts have repeatedly emphasised the importance of giving an affected employee an opportunity to hear and respond to the accusations against them. The Market Dimension document itself acknowledges this principle. Its stated objectives include ensuring fair and equal treatment of employees and ensuring that principles of natural justice are applied before an employee is disciplined. Significantly, it also expressly declares that the disciplinary procedures should not be used for intimidation or victimisation. Those commitments, however, sit alongside a punishment schedule containing a number of unusually severe provisions. Being Rude or Disrespectful Can Lead to Dismissal One of the provisions likely to worry employees concerns being “rude, discourteous, impolite or disrespectful” towards fellow employees, clients or superiors. Market Dimension defines this broadly to include screaming or shouting, insults, demeaning statements and even banging tables. According to the disciplinary schedule, the sanction indicated for the first breach is dismissal. There is nothing unusual about an employer demanding respectful behaviour in the workplace. Abuse, intimidation and persistent misconduct can legitimately attract disciplinary sanctions. The concern arises from grouping a wide spectrum of behaviour under a broad definition while prescribing dismissal at the first breach. A momentary argument between colleagues, an employee raising their voice during a disagreement and sustained abusive conduct can involve significantly different circumstances and levels of seriousness. The Employment Act does provide circumstances in which misconduct can justify dismissal, but the existence of a company rule does not make dismissal automatically fair. The facts surrounding an incident, the seriousness of the conduct, the employer's evidence and the disciplinary procedure followed can all become relevant when the fairness of a termination is challenged. Abusive Language Can Attract Summary Dismissal The disciplinary code goes further when dealing with abusive language. It defines the offence as a verbal act involving offensive, foul or insulting language and lists summary dismissal as the first-breach sanction. Again, serious verbal abuse in the workplace can constitute misconduct. What deserves scrutiny is the breadth of the provision when combined with the most severe disciplinary sanction available to an employer. The policy does not, on the pages reviewed, distinguish between different degrees or contexts of offensive language before indicating summary dismissal. Under Kenyan employment law, summary dismissal allows an employer to terminate employment without the ordinary notice where the employee's conduct amounts to gross misconduct. It should not, however, be confused with dismissal without procedural fairness. Section 41 protections remain highly relevant where misconduct is alleged, while Sections 43 and 45 deal with proving the reason for termination and whether termination was fair. That distinction is important because a disciplinary handbook cannot simply transform every incident falling within a broadly drafted category into proven gross misconduct. Employees Risk Summary Dismissal for Unauthorised Press Statements Another particularly striking rule concerns employees communicating with journalists, members of the public or other third parties. The company's disciplinary code identifies as an offence the issuing of unauthorised press statements to the public or mass media concerning company business without authority from management or the director. The first-breach sanction indicated is summary dismissal. Companies plainly have legitimate reasons for controlling who speaks officially on their behalf. Employees generally cannot appoint themselves corporate spokespersons, disclose genuinely confidential commercial information or falsely present personal statements as authorised company positions. However, the breadth of such a provision requires careful application. An unauthorised official statement on behalf of the company is not necessarily the same thing as every possible communication an employee might make concerning workplace matters. The circumstances, content of the communication, confidentiality obligations and any applicable statutory protections would matter. A disciplinary code therefore cannot necessarily be interpreted as creating an unlimited prohibition against workers ever speaking about their employer. Confidential Information Clause Gives Management Significant Power Disclosure of confidential information to unauthorised persons is another offence for which the disciplinary schedule provides dismissal. Protecting trade secrets, customer information, financial records and genuinely confidential business material is entirely legitimate, but the documents photographed do not appear to provide a detailed definition of what constitutes confidential information for purposes of this particular sanction. That distinction can become significant during disciplinary proceedings. An employer alleging that an employee disclosed confidential information would still need to establish what information was disclosed, why it was confidential, whether the employee was under an obligation to protect it and the circumstances under which the disclosure occurred. A broadly drafted confidentiality rule should therefore not be treated as a blank cheque for terminating workers who communicate information management simply finds embarrassing or inconvenient. Whether particular information is legally protected, confidential or subject to another statutory regime depends on the facts. Sexual Harassment and “Immoral Conduct” Placed Under One Offence Market Dimension also lists “sexual harassment or immoral conduct” as an offence attracting summary dismissal. The accompanying definition refers to uninvited lewd, sexually explicit or suggestive acts or words. Sexual harassment is a serious workplace offence, and Kenyan employment law itself recognises employers' obligations concerning sexual harassment. Where such misconduct is established following a fair disciplinary process, severe sanctions can plainly be justified. The questionable part of the drafting is the additional expression “immoral conduct.” Morality can be subjective, whereas a disciplinary offence should ideally tell employees with reasonable clarity what behaviour is prohibited. The definition supplied by Market Dimension narrows the provision towards unwanted sexual or lewd conduct, but the broader heading could potentially create uncertainty if management attempted to apply “immoral conduct” beyond the behaviour actually defined in the policy. Workers Face Dismissal Over Industrial Action Among the most consequential provisions are those governing industrial action. Market Dimension's disciplinary schedule provides dismissal for taking part in an “illegal strike or other industrial action,” including references to picketing and demonstrations. Inciting others to participate in illegal industrial action is separately listed as an offence attracting dismissal. The important legal qualification is the word “illegal.” Article 41 of Kenya's Constitution protects labour relations rights, including workers' rights to form, join and participate in trade-union activities and the right to strike. The Labour Relations Act then provides the statutory framework governing protected and prohibited industrial action. An employer therefore cannot simply erase those rights through an internal handbook. If industrial action is lawfully protected, participation cannot automatically be converted into misconduct merely because management dislikes the action. Conversely, participation in unprotected or unlawful industrial action can carry employment consequences. Determining which situation exists requires reference to the law and facts, rather than merely the wording of an internal disciplinary schedule. Fighting, Sabotage and Personal Business Can Bring Immediate Dismissal Several other offences attract summary dismissal on the first breach. They include fighting or assault at work, sabotage or malicious damage to company property and using company time for personal monetary gain. Gross negligence resulting in loss of company funds or damage to company property also attracts summary dismissal, together with recovery or surcharge for the money allegedly lost. Some of these are substantially different from the broader behavioural offences. Assault, deliberate sabotage, fraud and serious dishonesty can plainly amount to gross misconduct where established. The Employment Act expressly recognises several categories of serious misconduct capable of supporting summary dismissal. Even here, however, an accusation should not automatically become a conviction inside the workplace. An employer contemplating dismissal still needs to establish the factual basis for the disciplinary action and observe the procedural protections applicable under employment law. The provision allowing both summary dismissal and recovery or surcharge for losses also deserves careful application. An employer seeking deductions from an employee's wages must comply with the statutory framework governing permissible deductions rather than simply deducting whatever amount management believes it has lost. Criminal Allegations and Dishonesty Carry the Ultimate Workplace Penalty The disciplinary code additionally groups dishonest conduct and criminal offences among matters attracting summary dismissal. The underlying definitions cover extremely serious conduct, including theft, misappropriation of company funds, fraud or attempted fraud, bribery, corruption, unauthorised removal of company property, destruction or alteration of official records, smuggling, drug trafficking and misleading auditors. No reasonable workplace could be expected to tolerate proven theft, bribery or fraud. The legal concern arises if allegations are treated as automatically established simply because they fall within a category carrying summary dismissal. Employment disciplinary proceedings do not necessarily have to wait for the conclusion of criminal proceedings, but an employer must still have a defensible factual basis for its employment decision and provide the employee with the applicable procedural protections. Being suspected or accused of criminal conduct is therefore not identical to an employer proving a valid and fair reason for termination. Some Parts of the Code Are Far More Balanced Not every provision in Market Dimension's disciplinary regime is excessively punitive. For many ordinary workplace offences, the company adopts a conventional progressive disciplinary structure. Reporting late, taking unauthorised breaks, absenteeism, carelessness, poor supervision, substandard performance and several other offences generally begin with a verbal reprimand before progressing through written warnings, a final warning and eventually dismissal after repeated breaches. That structure recognises an important purpose of workplace discipline: correcting behaviour rather than immediately ending employment. The company also places time limits on disciplinary sanctions. The documents indicate that a severe reprimand remains effective for one month, a written warning for two months and a final warning for four months or the remainder of the contract period, whichever is shorter. Those provisions are considerably less punitive than the sections prescribing dismissal at the first breach. The contrast within the same document is striking. An employee repeatedly reporting late can progress through several warnings before dismissal, while another employee accused of using abusive language or issuing an unauthorised press statement can face summary dismissal at the first incident. Market Dimension's Own Code Prohibits Intimidation and Victimisation Perhaps the most important safeguard appears at the beginning of the company's own disciplinary code. Market Dimension states that its procedures are intended to ensure fair and equal treatment, encourage corrective action and guarantee the application of natural justice before an employee is disciplined. The document then makes an unusually direct declaration that the disciplinary procedures “shall not be applied for the purpose of intimidation or victimization.” That sentence could become highly significant whenever an employee challenges disciplinary action. If a worker were targeted for personal reasons, denied an opportunity to answer accusations or subjected to punishment as retaliation, such treatment would potentially raise questions not only under Kenyan employment law but also under Market Dimension's own stated disciplinary principles. The document therefore contains an internal contradiction that management must navigate carefully: it establishes severe punishments for certain offences while simultaneously promising workers natural justice, equal treatment and protection from intimidation and victimisation. Company Rules Cannot Replace Kenyan Employment Law Market Dimension is entitled to establish standards governing punctuality, performance, safety, confidentiality, professional behaviour and protection of company property. Employees equally have a responsibility to observe legitimate workplace rules. What the disciplinary code cannot do is create a parallel employment-law system in which writing “summary dismissal” next to an offence automatically removes statutory protections. Sections 41, 43, 44 and 45 of the Employment Act operate together in determining how misconduct and termination are treated. Section 44 recognises circumstances capable of constituting gross misconduct, while Section 41 provides procedural safeguards and Sections 43 and 45 address the employer's reason and the fairness of termination. Kenyan courts have repeatedly examined these provisions when deciding whether dismissals were substantively and procedurally fair. Bullies: Market Dimension's disciplinary code therefore deserves scrutiny not because employers should be prevented from disciplining workers, but because some provisions give management an exceptionally severe sanction for broadly framed conduct.
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