A recent Court of Appeal case again has reinforced the centrality of procedural fairness and strict statutory compliance in employment termination disputes, particularly within public institutions and unionised workplaces.
In Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Board of Management, Bortolimo Boys High School (Cause E044 of 2025) [2026] KEELRC 1589 (KLR), the Employment and Labour Relations Court was called upon to determine the legality of the summary dismissal of an employee of a public secondary school, represented by the union, on allegations relating to administrative and financial misconduct.
The dispute arose after the Board of Management terminated the employee’s services on grounds that included alleged mismanagement of school resources, failure to adhere to administrative procedures, and general negligence in the performance of duties. The union challenged the termination, arguing that it was both substantively unjustified and procedurally unfair.
The Court was therefore required to interrogate three key issues: whether the employer had established a valid and fair reason for dismissal under section 43 of the Employment Act, whether the disciplinary process complied with the mandatory procedural requirements under section 41, and whether the decision to summarily dismiss the employee was lawful and proportionate under sections 44 and 45 of the Act.
In its determination, the Court emphasised that an employer must satisfy a dual threshold in all termination disputes. First, the employer must prove the existence of a valid reason for termination. Second, the employer must demonstrate that the employee was subjected to a fair and lawful disciplinary process. The Court reiterated that failure to satisfy either limb renders the termination unfair.
On the facts, while allegations of misconduct were raised, the Court found that the disciplinary process did not meet the strict requirements of procedural fairness. In particular, the employee was not accorded a sufficiently fair hearing in accordance with section 41, and the safeguards of notification, response, and representation were not properly observed. The involvement of union representation, where applicable, was also not meaningfully realised in the process.
The Court further held that summary dismissal under section 44 of the Employment Act is only justified in cases of proven gross misconduct and must still be anchored on a fair hearing process. In the absence of compliance with these requirements, the dismissal could not stand in law.
Accordingly, the Court concluded that the termination amounted to unfair dismissal under section 45 of the Employment Act, reinforcing the principle that procedural fairness is not a formality but a substantive requirement that goes to the validity of employment decisions.
This decision is significant as it strengthens Kenyan labour jurisprudence on the protection of employees in public institutions, particularly where Boards of Management exercise disciplinary authority. It underscores that even where misconduct is alleged, employers must strictly comply with statutory procedure, and failure to do so will vitiate the entire disciplinary process. Ultimately, the case reaffirms a consistent judicial position that employment discipline must be both substantively justified and procedurally fair, failing which it will not withstand judicial scrutiny.
