QUESTION: I am a 30-year-old working in a small organisation. Two of my colleagues got mental health conditions. Apart from informing my boss, they exhibited mental health symptoms ranging from aggressiveness to reliance on alcohol to cope with sleep disorders. They were sacked. Can they sue the employer?
In some ways, yours is a simple question and yet in some other ways, it raises a number of fundamental questions that we must look into today.
The simple answer, therefore, is that your colleagues may and perhaps ought to sue the employer for wrongful dismissal if indeed they lost their jobs because of ill health.
For the removal of doubt, the Employment Act is intended to ‘protect employees from receiving less than the minimum that is required’ The law further ‘defines the fundamental rights of the employee’. In a sense, the worker is well protected from all forms of discrimination, including in this case, the fact that he has fallen ill.
Some employers have argued that the present law is skewed too far in favour of staff but for now, that is the law that must be adhered to by all law-fearing bodies that engage in employment in Kenya.
In this context, therefore, falling ill in any way (including mental illness) is not a legal ground for termination of a job. This response is as one would expect very general, and your friends should seek advice of a lawyer.
That said, however, and as happens in life in general, there are situations where illness could lead to the employee, being unable to perform the duties for which he was hired but even then, the employer must demonstrate that he has taken reasonable steps to accommodate the member of staff.
Taking your example to illustrate such a scenario, the boss has the duty to ensure that the staff has had ample time to recover from whatever illness might have afflicted them.
In this case, if the small company for which you work is in the transport sector and the staff member in question was say a bus driver who is unable to drive the bus because of Post-Traumatic Stress Disorder (PTSD) type symptoms, then the employer would have to show reasonable accommodation of the needs of the employee. He might for instance be deployed to office duties for some time.
Many years ago we came across a case in which a bus driver was involved in a road accident on Mombasa road, and a number of people died. He survived and after several weeks in hospital he was declared ‘fit to resume his full duties’.
It was then that real problems arose. The driver was in receipt of a certificate of fitness to work, and the employee was of the view that he could no longer drive a bus on Mombasa road. There arose a standoff between the parties on what on the surface was a straightforward matter of what the employer declared to be insubordination.
At a family function, the bus driver became very drunk and rather aggressive towards the family members present and a young postgraduate student in psychiatry was shocked by the reaction of the family to her uncle’s behavior.
Some wanted the police to be called in while others called for his punishment within the family traditions. He was found the following day having taken an overdose of rat poison in an attempt to end his life.
The young doctor arranged for the man to be seen by one of her teachers, and what might have been a family tragedy turned out to have a happy ending.
Following the road accident, the man had made a full recovery from the fractures he had sustained that fateful night. A month after the accident, he started to experience flashbacks of the accident.
He kept seeing the image of the huge track that was parked by the side of the road and without lights or reflectors that he and his passengers had crashed into. The screams of his passengers as the crash happened kept him awake at night as did the smell of the diesel fumes and fire that ensued.
Any kind of noise would leave his heart pounding and he had become very irritable at home leading to difficulties with his wife and children. He did not want to hear the mention of the word Mombasa as it brought him great anxiety.
The psychiatrist was able to make a diagnosis of PTSD complicated by alcohol use disorder and the man received appropriate treatment through medication and psychotherapy.
A few months later he was back at work, his employer and family were happy with the outcome.