Employer Fined for Terminating Employee for Being Drunk in the Workplace: Kenya National Private Security Workers Union v KK Security Services Limited ELRC [2024]

Introduction

Kenyan employment law imposes two critical obligations on employers who wish to terminate an employee:

1. There must be a valid and fair reason for termination.
2. All procedural requirements, as set out in the Employment Act and any internal manuals, must be meticulously followed.

The recent judgment in Kenya National Private Workers Union v KK Security Services[2024]eKLR has sharpened the spotlight on these requirements, particularly regarding workplace intoxication.

Summary

The claimant, a security guard employed by KK Security Services, faced accusations about regularly attending his post while allegedly drunk. Despite receiving several verbal warnings, he was subsequently served with a formal Show Cause letter. A disciplinary hearing followed, after which his contract was terminated.

Aggrieved, the employee filed a claim for unfair termination. The court sided with him and awarded significant compensation. It found that the employer had not discharged the mandatory legal burden of proving either gross misconduct or that his alleged drunkenness substantially impaired his ability to perform his duties or disrupted operations.

Crucially, the court held that simply establishing that an employee was at work under the influence, without clear evidence of actual workplace disruption, danger, or inability to discharge assigned duties, is insufficient. It cited recent authorities, such as Josphat Mwangi Mwaura v Highland Mineral Water Company Ltd [2023] eKLR and Juma v Kenya Wine Agencies Ltd [2022] eKLR, which consistently affirm that employers must go beyond mere claims of intoxication and demonstrate tangible workplace impact or breach of lawful orders.

Abstract

Burden of Proof

Section 47(5) of the Employment Act 2007 unequivocally places the burden on the employer to justify the reasons and procedure of termination. Unless the employer evidences that the drunkenness impacted performance or led to a fundamental breach of company policy or law, the termination will likely be deemed unfair.

Conclusion

Procedural Fairness

As underscored in Kenya National Private Workers Union v KK Security Services, even after a disciplinary process, the employer must show that:

1. The employee was afforded a fair hearing,
2. The disciplinary rules were consistently and transparently applied,
3. The intoxication resulted in actual misconduct or inability to perform duties.

Failure to meet these requirements exposes the employer to liability for unfair termination, regardless of internal policy on substance use.