Justice Bernard Manani of the Employment and Labour Relations Court has ruled that intoxication is not adequate grounds to fire an employee.
The ruling is exempted only when the intoxication leads to gross misconduct or incapacitates the employee from efficiently delivering on their mandate as per the work contract.
The appellate application by the Mnarani club was dismissed following a similar ruling from a Magistrates court.
Mr. Davidson Washe had been relieved of his duties on accusations of working while drunk.
The Malindi- based Justice Bernard Manani noted that the fact that an employee reeks of or looks like they have taken alcohol is not sufficient reason for being unarbitrarily sacked from work.
“The employer must demonstrate that the alcohol consumed has rendered the employee incapable of performing his duties properly” stated Justice Bernard Manani.
It was further established that the employer had not communicated to the employees the code of conduct while at work and more so in writing.
As such the ruling was made on the assumption that the employee was not aware of the expected code of conduct at the workplace.
Mnarani club failed to present to the court evidence of a policy or such communication made to its employees.
“It would be wrong to punish an employee for violating a policy whose content the employee is not shown as having been aware of” the ruling stated.
The judge ruled that policy must be communicated to employees and a record of the same kept for future reference.
He further added that such an undertaking could potentially infringe on an employee's right to fair labour practice and fair administrative action as per the provisions of the constitution in Articles 41 and 47.
The court upheld the ruling of the Magistrates court noting that despite being intoxicated, Mr. Washe performed his duties and completed his shift.
On the eventful day Washe the Mnarani club waiter took a shift break from work in which he consumed a traditional brew (mnazi).
He resumed his duties to serve guests dinner.
Allegedly some guests complained of the portions served, and some complained of his drunken stupor. It is also alleged that he poured food on one of the guests.
