The Employment and Labour Relations Court has ruled that employers are required to obtain scientific evidence of an employee's intoxication if it occurs during working hours.
This, the court said, is to avoid a scenario where an employer alleges intoxication of an employee during working hours and the employee denies the allegation, leading to a case of the employer's word against the employee's.
Justice Agnes Nzei ruled that scientific proof of an employee's intoxication may require the involvement of relevant experts.
The judge noted that the Labour Act lists drunkenness during working hours as gross misconduct for which an employee can be summarily dismissed.
“Involvement of the relevant experts (like medical experts) to establish an employee’s intoxication is the only way in which injustice to an employee alleged to have been intoxicated can be avoided,” ruled Justice Nzei.
She made the ruling in an appeal by Swahili Beach Resort Ltd against a Magistrates' Court ruling that it had unfairly dismissed its beach manager, Mr Stephen Lempairas.
Swahili Beach Resort Ltd had told the court that Mr Lempairas was dismissed for gross misconduct, reporting for work intoxicated and being drunk and disorderly.
Justice Nzei ruled that Swahili Beach Resort Ltd had failed to prove that there was a just reason for terminating the respondent's employment.
“The appellant (Swahili Beach Resort Ltd) in the present case did not demonstrate, or even allege, adherence to the foregoing mandatory procedure, yet gross misconduct was alleged,” ruled Justice Nzei.
While upholding the findings of the trial court, Justice Nzei ruled that Mr Lempairas’ dismissal was procedurally and substantively unfair.
She further upheld the award granted by the trial court—Sh212,500, representing five months' salary, as compensation for wrongful termination of employment and Sh42,000, representing one month's salary in lieu of notice.
In its appeal, Swahili Beach Resort argued that the trial magistrate erred in fact by ignoring its evidence that the respondent had executed a discharge voucher absolving it of all claims by the respondent, thereby arriving at a wrong decision.
It also argued that the trial magistrate erred in law and fact by disregarding the evidence on record and that the respondent had been paid all his terminal benefits after his dismissal.
The hotel sought to have the decision of the trial court set aside and for the court to reassess the general damages payable to Mr Lempairas.
For his part, Mr Lempairas told the court that he was abruptly and verbally dismissed by the hotel on January 1, 2019, without notice and without any valid reason.
In court, Mr Lempairas sued the hotel for wrongful dismissal, claiming that on January 1, 2019, he reported for duty at 6.30am and at around 9am, the defendant's director and a human resources manager summoned him to the office and ordered him to leave the hotel premises as his services were no longer required.
He also told the court that the hotel had dismissed him without following the prescribed procedure, as he had not been given notice, had not been paid his final salary and his employment had been terminated without cause.
Swahili Beach Resort told the court that it followed due process in terminating the respondent's employment and that he was dismissed for reporting to work drunk and disorderly.
The hotel's witness had told the court that there was nothing to show that Mr Lempairas had been drunk, as the hotel had claimed. Mr Lempairas had also denied the allegations.
The magistrate ruled that Mr Lempairas had been unfairly and unprocedurally dismissed and awarded him compensation.
