Kenya Union of Commercial Food and Allied Workers v Equator Bottlers Limited

March 2024, the Grievant reported to work at about 8.00pm and underwent the requisite breathalyser test. Thereafter, it avers that on 3rd June 2024, he was issued with a show-cause letter alleging that he had shouted at his supervisor and was insubordinate. He responded to the allegations and attended a disciplinary hearing on 24th June 2024 and was subsequently summarily dismissed by a letter dated 13th August 2024. The Claimant avers that the Grievant’s appeal against the dismissal was thereafter heard on 9th September 2024, but the Respondent upheld the summary dismissal. Despite efforts at conciliation no agreement was reached, resulting in the issuance of a certificate of unresolved dispute on 12th April 2024. 2. In view of the foregoing the Claimant contends that the dismissal was unfair and consequently seeks a total of Kshs. 647,939.65 comprising; Kshs. 46,351/- as notice pay, Kshs. 25,291.65 for 13 days worked in August 2024, Kshs. 20,085/as accrued leave pay, and Kshs. 556,212/- as compensation equivalent to 12 months' salary. It also seeks a certificate of service and costs of the suit. Page 2 of 9

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3. In opposition to the suit the Respondent filed a Reply to Statement of Claim dated 8th March 2026. It acknowledges the Claimant’s employment but disputes his gross monthly salary of Kshs 46,351/- contending that it included overtime payments that did not form part of his gross monthly salary. 4. The Respondent avers that on 26th March 2024, while on night shift the Grievant refused lawful instructions from his supervisor, resulting in suspicion that he was intoxicated. The Respondent avers that on the basis of this suspicion; it requested the Claimant to undergo an alcohol and blood test but he declined. Following his refusal the Respondent states that it issued a Notice to Show Cause dated 3rd June 2024 citing impairment through alcohol, refusal to submit to a required test, insubordination and failure to comply with a superior’s instructions. Consequently, the Respondent avers that he was summarily dismissed on 13th August 2024 following a disciplinary hearing and the dismissal of his appeal. It therefore urges the Court to dismiss the suit with costs. Page 3 of 9

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5. At the hearing the Grievant testified while the Respondent’s Human Resource Business Partner testified on its behalf. The Grievant adopted his witness statement dated 17th December 2025 as his testimony in chief and produced the documents in the list of documents dated the same day as his evidence. The Respondent’s witness equally adopted his witness statement dated 14th July and produced the document in the Respondent’s bundle of documents dated 18th March 2026 and 14th July 2026. At the close of hearing, both parties filed written submissions. Claimant’s Submissions 6. The Claimant substantiate submits the that the allegations of Respondent failed insubordination to and intoxication relied upon to justify the Grievant’s dismissal. It argues that the Respondent’s own evidence was contradictory on whether the Grievant underwent an alcohol test when he reported for duty. The Claimant further submits that the allegation that the Grievant smelled of alcohol did not, without more, establish that he was intoxicated or incapable of performing his duties. In support, it relies on Page 4 of 9

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Chirchir v Avsi Foundation [2025] KEELRC 2287 (KLR) and John Rioba Maugo v Riley Falcon Security Services Limited [2016] eKLR, for the proposition that an allegation of alcohol consumption or the smell of alcohol does not, by itself, establish gross misconduct warranting summary dismissal. The Claimant asserts that the allegation that the Grievant refused lawful instructions was equally unsubstantiated. It contends that there was no evidence that he refused any staging orders or threw his helmet as alleged. It asserts that the CCTV footage was unreliable because it lacked date and time stamps. Moreover, the Claimant submits that the Grievant's refusal to use what he considered an unhygienic breathalyser straw did not amount to insubordination, particularly as he offered to undergo the test at a public Respondent's alleging that health failure the to facility. provide Grievant It argues that transportation, was intoxicated, the despite further undermined its case. Consequently, the Claimant asserts that the termination of employment was contrary to sections 45(1), 45(4) and 45(5) of the Employment Act. it therefore urges the Court to grant the reliefs sought. Page 5 of 9

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Respondent’s Submissions 7. The Respondent submits that the Grievant failed to discharge the burden under section 47(5) of the Employment Act of proving that his termination was unfair. Relying on Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR, it asserts that the burden first lay upon the Grievant to establish unfair termination before the Respondent could be called upon to justify the termination. It highlights the fact that the Grievant’s admitted refusal to undergo alcohol testing both at the workplace and at an external medical facility amounts to insubordination. The Respondent maintains that the Grievant’s conduct constituted gross misconduct under section 44(4)(b) and (e) of the Employment Act and was expressly addressed by Clauses 4.6.2 and 4.7 of its Policy, hence warranting his summary dismissal. 8. On procedural fairness, the Respondent maintains that the requirements of section 41 of the Employment Act were satisfied. It points to the fact that the Grievant was issued Page 6 of 9

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with a show-cause letter, responded to the allegations, attended a disciplinary hearing where he was given an opportunity to be heard and to call a witness, and subsequently exercised his right of appeal. On the reliefs sought, the Respondent submits that the Grievant is not entitled to compensation because the dismissal was lawful and fair. It further submits that notice pay is unavailable where summary dismissal for gross misconduct is established, pursuant to section 44(1) of the Employment Act and the Respondent's Policy. 9. The Respondent further submits that the conciliator's recommendations were not binding upon the Court. Relying on section 50 of the Employment Act and Pius Machafu Isindu (supra), it argues that the Court is required to independently determine the dispute on the evidence before it. It therefore urges the Court not to rely on the conciliator's recommendations where the evidence establishes that the dismissal was lawful. Finally, the Respondent submits that costs are discretionary under section 12(4) of the Employment and Labour Relations Court Act and urges the Page 7 of 9

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Court to award it costs on the basis that the Claim was necessitated by the Grievant's admitted breach of its Policy. Disposition 10. The Grievant herein was accused of intoxication whilst at the workplace. Upon being requested to undertake a breathalyser test, the Grievant declined asserting the gadget had a unhygienic breathalyser straw. He also declined to undergo a blood test in lieu of the breathalyser test. In the Court’s considered view, the refusal to undertake any test was insubordination and was grounds for a disciplinary action. The Grievant therefore was the author of his own misfortune for failing to comply with reasonable directives. If the breathalyser straw was dirty, it would be expected that the employee would accept to undertake the next alternative test. In this case the employee was directed to undergo a blood test at a clinic and he similarly declined to have the test undertaken. This cannot be viewed in any other way. An employee who declines to take reasonable directions of the employer insubordinates the employer. A supervisor is entitled in that case to report the matter for further action. Granted the Grievant declined to obey a lawful order, can he Page 8 of 9

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now claim he was unfairly terminated? The termination that ensued followed a disciplinary hearing and the worker even had the opportunity to prefer an appeal. In my considered view the employer satisfied the requirements of fair hearing under section 41 and the termination is deemed to be fair and justified in terms of sections 43 and 45 of the Employment Act. As such the only recourse for this claim is a dismissal. The suit being devoid of merit is accordingly dismissed with costs to the Respondent. It is so ordered. Dated and delivered at Kisumu this 30th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 9 of 9

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