•The pilot defended himself saying the ‘unidentified drugs’ prescribed by the doctors had no restriction on alcohol consumption.
• However, the pilot argued that his termination from employment was unfair and unlawful.
Image: JUDICIARY
When Brian Kashero went on a 24-day sick-off leave, he was not aware that his employer would call for an independent medical examination that would find high contents of alcohol in his blood causing him to lose his job.
His employer was concerned about his absence from the workplace for 24 days with an undisclosed illness until it demanded information that it believed Kashero ought to have availed without prompting.
What they discovered appeared to have alarmed the airline because, at the time, Kashero was on sick-off and on medication. They did not expect him to be taking alcohol.
The airline having arranged for an examination by an independent medical doctor revealed Kashero's blood had 7mg/dl of alcohol. He was examined on 6 July 2017.
“To the airline, it is decipherable that the 7 mg of alcohol in Brian’s blood was a smoking gun in light of the circumstances the claimant was in,” Justice Jacob Gakeri said.
Kashero defended himself saying the ‘unidentified drugs’ prescribed by the doctors had no restriction on alcohol consumption.
Kashero joined the airline on June 23, 2014, as a First Officer.
He trained in Spain and claims to have served the airline diligently. Some three years later, in June 2017, he fell ill.
He was diagnosed as medically unfit to fly and was given two weeks off-duty. The leave lapsed but he was yet to recover. He was given another 10 days off duty but was later terminated from employment on 14 August 2017.
According to the letter of termination dated August 14, 2017, the reason was that after a pre-notified company medical (examination), his blood showed signs of alcohol.
The company had lost faith in entrusting Kashero with its aircraft, staff and passengers.
However, Kashero argued that his termination from employment was unfair and unlawful.
He claims that he was not invited for a disciplinary hearing or notified of the right to have a representative and no investigation was conducted.
He asked the court to take note of the airline asking him to report for a medical examination without the approval of the Kenya Civil Aviation Authority. He said the alleged test report was flawed and amounted to unfairness
As a result, he sought an order to be unconditionally reinstated without loss of benefits. In the alternative, he is paid his benefits amounting to Sh4 million.
However, according to the airline, the claimant had not explained the presence of alcohol in his blood satisfactorily.
The Kenya Civil Aviation Authority Act and Regulations require the Airline to monitor its pilots to ensure the safety of the public, staff and the aircraft.
The Airline defended itself saying they accorded Kashero a fair hearing but could not defend himself satisfactorily.
The airline claimed the pilot allegedly swindled their money and took alcohol while on sick-off.
The airline argued that the risk of retaining the pilot in employment after confirming that he had taken alcohol while on sick-off was enormous and the decision was taken to terminate his employment.
Kashero on the other hand did not deny that there was alcohol in his blood
The judge in his findings said “regrettably, none of the doctors who reviewed him previously provided a diagnosis or prescription including what he was supposed to do or not do,”
The judge added that ‘although the airline issued two notices to show cause and the claimant responded, it did not invite him for a disciplinary hearing as neither the notice of invitation nor minutes of the proceedings were availed and no notice of termination of employment was given.
Gakeri in declaring that his termination from employment was procedurally unfair awarded him one month's salary in lieu of notice Sh458,000.