For termination of employment to be fair, there must be both substantive justification and procedural fairness. Substantial justice refers to establishment of a valid reason for termination while procedural fairness refers to the procedure adopted by the employer in effecting the termination. The principle of substantive fairness is provided for in Section 43 of the Employment Act while procedural fairness is provided for in Section 41 of the Act.

Section 45 of the Employment Act provides that termination of employment is deemed unfair if the employer fails to prove that the reason for the termination was valid and fair and that the procedure followed in reaching the decision to terminate was fair.
Substantive Fairness - Proof of reason for termination. Section 43 of the Employment Act provides that:
i. In any claim arising out of termination of a contract, the employer shall be required to prove the reason(s) for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair.
ii. The reason(s) for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

Section 35 of the Employment Act provides for the giving of written notice before terminating an employment contract in respect of which wages are paid periodically.
Section 41 of the Employment Act provides that:
i. Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
ii. Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.
The import of this section is that before an employer terminates the contract of an employee, s/he must accord the employee a chance to be heard and must also explain to the employee, in a language the employee understands, the reason for which the employer is considering the termination. The Court, in the case of Alphonce Maghanga Mwachanya v Operation 680 Limited [2013]Eklr held that for an employer to meet the legal requirements of procedural fairness of Section 41 of the Employment Act, he should show as a matter of factual evidence that he did the following:
i) Explained to the employee in a language the employee understood the reasons why it was considering the termination.
ii) Allowed a representative of the employee, being either a fellow employee or a shop representative to be present during the explanation of the reasons.
iii) Heard and considered any explanation by the employee or his representative.
It is therefore prudent for employers to ensure that before terminating the services of their employees they meet both the substantive justification and procedural fairness requirements.