Smelling Alcohol At Work Is Not Valid Reason For Sacking Employee, Labour Expert

• The labour and employment expert said that smelling or looking drunk does not mean someone is unable to perform their duties
• Samuel Ochieng, who has been handling labour disputes for over eight years, said that the employer must prove that the employee accused of being drunk was unable to work
• Also, anyone found to be drunk and unable to work should not be summarily dismissed but requires to go through a disciplinary process

It is an open secret that several Kenyans, more than once take a drink or two after working hours or during work hours.

Summary dismissal in Kenya

While this may be seen as inappropriate and unethical for employees, a Labour Relations Court Advocate observed that it is not sufficient ground for summary dismissal.

Summary dismissal is the immediate termination of employee's contract without notice of payment in lieu of notice (in place of notice), as a result of gross misconduct.

Samuel Ochieng who has over eight years experience in arbitrating labour disputes exclusively, told TUKO.co.ke that drinking or smelling alcohol does not lead to inability or unwillingness to work thus not a valid ground for summary dismissal.

"The wording of section 44(4)(b) of the Employment Act 2007 requires that intoxication should be such that the employee is unwilling or incapable to perform his work properly.

Drinking at work

"A test to establish unwillingness to perform work is subjective hence it is for the court to assess whether the employer’s decision was reasonable in the circumstances. This is also known as the ‘’reasonableness test," Ochieng explained.

In an exclusive interview with TUKO.co.ke Ochieng said there was no standard measure of assessing whether an employee is incapable or unwilling to perform his work properly.

Ochieng opined that the standard of assessment ranges from case to case and more so, is dependent on the nature of work to be performed by the employee

He cited a case filed by John Rioba Maugo against Riley Security Services in 2015 Limited.

The court stated that drunkenness is a very shaky ground to find liability for purposes of summary dismissal.

Ochieng said that drinking alone or smelling alcohol per se is not grounds for summary dismissal because the employer must prove that one was drunk and incapable or unwilling to work.

Alcohol at work disciplinary

"The employer therefore has the burden not only of proving intoxication, but also the unwillingness or incapability of the employee to perform his work due to such intoxication.

"People react differently to alcohol. Some people are intoxicated by low doses of alcohol while others consume large volumes without showing signs of intoxication. Not all people would render themselves unwilling or incapable of performing their duties at the same level of intoxication," explained the Advocate.

The lawyer added that courts have previously ruled that an employer should devise a policy of determining intoxication that makes an employee unwilling or incapable of performing his work.

Standing on one leg

He said this can include observation of the employee’s response to specific questions or commands, asking the employee to perform simple tasks such as standing on one leg, writing a specific sentence and or any other function that an intoxicated person cannot achieve.

He further explained that before an employer contemplates dismissing an employee from work for intoxication; a notice to show cause letter must be written to the employee, followed by a disciplinary hearing to comply with Section 41 of the Employment Act 2007.

Ochieng expounded that the dismissal from work without a hearing offends the principles of natural justice.

TUKO.co.ke reported about a Kenyan in Saudi Arabia who said drinking made her lose a lucrative job.