Waiter fired for being drunk gets reprieve in legal tussle with hotel
The Employment and Labour Relations Court has ruled that mere intoxication is not sufficient reason to sack an employee.
Justice Bernard Manani also said that intoxication becomes a ground for gross misconduct only when it is shown to have rendered the employee incapable of performing his duties.
The judge dismissed an appeal by AVC Management Company Ltd, trading as Mnarani Club, challenging a Magistrate’s Court decision that it unfairly terminated the employment of Davidson Washe, a waiter.
The dismissal of the appeal was a reprieve to Mr Washe who was fired by the hotel located in Kilifi county, for allegedly being drunk at work.
Justice Manani, sitting in Malindi, noted that as it was observed in another case, the mere fact that an employee smells of or has taken alcohol is not a ground for summary dismissal.
“The employer must demonstrate that the alcohol consumed has rendered the employee incapable of performing his duties properly,” said Justice Manani.
He added that there is nothing wrong in an employer having a policy forbidding employees from taking any form of alcoholic beverages while on duty but it (policy) must be communicated to the employees and a record of the communication kept.
The judge noted that Mnarani Club was unable to provide evidence of the policy or demonstrate that it had been communicated 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.
Such action would fly in the face of the employee’s right to fair labour practice and fair administrative action as protected under Articles 41 and 47 of the constitution,” he said.
He added that the Magistrate’s Court cannot be faulted for having held that, despite having taken alcohol, Mr Washe was not shown as having suffered a disability in executing his duties and that he, in fact, continued working until the end of a second shift.
The court noted that it had studied the record of appeal and it did not show that the waiter had been served with a document detailing charges against him before he appeared for a disciplinary session.
Justice Manani said it cannot be assumed that notice to attend a disciplinary session contained details of the charges against the waiter.
The court noted that, after the disciplinary session, Mr Washe appealed the decision to fire him but was not invited to submit on the appeal as it was rejected summarily.
Justice Manani said it was also not denied that the appeal was summarily dismissed by the same individual who presided over the disciplinary session that dismissed Mr Washe.
Mr Washe, the court heard, was hired by Mnarani Club as a waiter on May 31, 2011. On December 26, 2020 while on duty from 6am, he took a short break around 3pm and went home.
He was expected back for his second shift at 6pm. The court heard that, while at home, he drank a traditional alcoholic brew (mnazi).
He reported back at 6pm and set out to serve guests with dinner.
Some guests are said to have complained about the food portions offered to them, while one raised concern about Mr Washe’s apparent state of inebriation.
Mr Washe was also accused of spilling food on one of the guests.
The hotel’s shift manager asked Mr Washe not to serve the guests but he was allowed to continue working into the night and appeared to have remained on duty until 9.30pm, the end of the second shift. The shift manager reported the incident to the hotel’s management, leading to Mr Wache losing his job.
Mr Washe sued the hotel before the Magistrate’s Court in Kaloleni.
The court ruled in his favour prompting the hotel to file the appeal.
The hotel said the court misdirected itself on the requisite burden of proof on the question of Mr Washe’s intoxication and that its decision went against the weight of the evidence tendered. BY DAILY NATION



Post a Comment