Before You Fire Someone: A Practical Checklist for a Dismissal That Will Survive Court

Terminating an employee for misconduct is one of the highest-risk decisions a business makes. Get it wrong procedurally, and even a well justified dismissal can be overturned. A recent Court of Appeal case shows exactly what a defensible process looks like, because the employer in that case got the procedure right even though its case ultimately had to go all the way to the Court of Appeal to be vindicated on the merits.

The Case, Briefly

In Consolidated Bank of Kenya Limited v Lydia Kaguri Makathimo, the bank dismissed an employee following two rounds of internal investigation into a cash shortfall and separate allegations of unauthorised account activity and undisclosed private lending. The employee initially won at the Employment and Labour Relations Court, but the Court of Appeal overturned that decision, finding the dismissal both procedurally and substantively fair.

What stands out is that the Court of Appeal had no difficulty at all with how the bank ran its process. Here’s what it did, distilled into a checklist any employer can use.

The Checklist

1. Put it in writing, every time. The bank issued formal “Show Cause” letters at each stage, clearly setting out the specific allegation, the evidence behind it, and what the employee was being asked to explain. Verbal warnings or vague accusations don’t create the paper trail a court will later look for.

2. Give the employee a genuine chance to respond. The employee submitted written explanations to each show-cause letter, and those explanations were considered, even though the bank ultimately found them unsatisfactory. A dismissal decision made without first hearing the employee’s side is vulnerable, regardless of how strong the underlying evidence looks.

3. Hold an actual disciplinary hearing. Beyond written correspondence, the bank convened formal disciplinary hearings, with notice given in advance and the substance of the allegations restated.

4. Tell the employee they can bring support. The employee was explicitly informed of her right to be accompanied at the hearing by a colleague of her choice: a requirement under Section 41 of the Employment Act that is easy to overlook and easy to prove if properly documented.

5. Base the decision on what was actually gathered (not assumption). The bank’s conclusion rested on the employee’s own written admissions and documentary evidence (the loan agreement, the account debit record), not on suspicion or hearsay. A genuine, evidence-based belief in the misconduct is what the law requires; it doesn’t need to be proof beyond doubt, but it does need to be real.

6. Keep every letter and record. When the matter reached court years later, it was the bank’s own show-cause letters, the employee’s response letters, and the disciplinary hearing records that carried the case. None of it is useful if it isn’t kept and organised.

Why This Is Worth Doing Before, Not After

Every one of these steps is far easier to get right before a termination decision is made than to reconstruct afterward once a claim has been filed. Businesses (particularly smaller ones without a dedicated HR or legal function) often skip a step not out of carelessness, but because no one flagged it as a legal requirement until it was too late.

If you’re facing a decision to discipline or dismiss an employee for misconduct, a short conversation with counsel before you act costs far less than defending a wrongful dismissal claim after the fact: and, as this case shows, doing it right the first time can save years of litigation.

C.B. Mwongela & Co. Advocates advises employers on disciplinary procedure, termination decisions, and representation in employment disputes from the Employment and Labour Relations Court through to the Court of Appeal. In this case, the firm acted for the bank on appeal and secured a Court of Appeal ruling that the dismissal was both procedurally and substantively fair, overturning the earlier decision which was in the employee’s favour.