THE CHILD AND BALLOON

In the moment from unknown, be it excitement or something else in between, a child while playing with the balloon applies too much pressure of air inside it. The net effect is that, such doing will result in the balloon being bigger and the much bigger it becomes, it will burst. When it does so, the child will cry.

The above scenario is the same concept of gross misconduct. Gross misconduct is a big word, it is the air being pressured into the balloon. Balloon is the employment and the child is the employee or the state officer. Gross misconduct makes the balloon gets bigger, but it will only apply if and only when the goal was to mean injuring the balloon or employment that risks the whole employment not being present at all or not to exist as it is.

A look at the example of grounds and the inputs of whether its net effect is to reduce the employment status that exists will further elaborate more on it.

From the absence from duty without leave or other lawful cause, we look from a scenario of one who is absent from duty without leave or other lawful cause. We ought to ask ourselves first, was the absence justifiable? Was it with intent to not define the relationship of not being in employment or was it an emergency? Like one’s parent being sick and you are the only child and like matter.

On negligence of duty one ought to ask what were the parameters, was it Friday, and being a man, one went to the mosque between 12:00 P.M to 2:30 P.M or are they a practicing SDA that would make them not attend work on Saturday.

From the point of intoxication during working hours; does that affect on how they perform their work duties, if they perform well, is it justifiable to dismiss them?

It might be a strike for better pay, thus one “might” use abusive or insulting language or behaving in a manner likely to cause a breach of the peace. The intention is for them to be still in employment but better working conditions.

An order as it looks is going against the values that holds strong the country like equality and freedom from discrimination, is it right to obey or disobey?

Through the adversarial system we are proud with, upon criminal conviction, one appeals, as it stands innocence comes in at play again and perhaps one is out on cash bail or bond.

Forces unknown play at hand, one goes to jail for more than 14 days, but you ask, was it really 14 days or a delay to be taken to court by the police resulted to those 14 days being more?

There is fire and it results to willful destruction of government property, is it justifiable yet intention was to protect the property that is inside?

Under the label of patriotism, there is theft or unauthorized use or disclosure of confidential information; see here it is being patriotic.

Being a spy, there is need for falsification of information or references on appointment or acceptance of any bribe, secret profit or unauthorized commission.

See the point here is that of to look: was the grounds for gross misconduct aimed to challenge the definition or status of employment the employee is in? If not, gross misconduct regardless of the grounds being there, does not qualify.

We return back to the concept of the child and balloon: was the pressure of air into the balloon meant for it to burst and make the child cry? For that is what happens when one is fired, they “cry” sort of, because a source of livelihood has been taken away.

REFERENCES

  1. The grounds for gross misconduct of a state officer is pinned on Employment Act, 2007, the Public Service Commission Act, 2017, the Public Officer Ethics Act, the Leadership and Integrity Act, 2012, the Anti- Corruption and Economic Crimes Act, 2003, the Public Service (Values and Principles) Act, 2015.
  • In Pheoby Aloo Inyanga v Stockwell One Homes Management Limited & another [2022] eKLR at Paragraph 73

73. Whether an employee’s misconduct warrants dismissal requires assessment of the degree of the misconduct and the surrounding circumstances, a contextual approach.  In Mckinley vs BC Tel, [2001] 2 SCR 161,2001 SCC 38 [CanLII], it was held:

“29.  When examining whether an employee’s misconduct justifies his or her dismissal, courts have considered the context of alleged insubordination.  Within this analysis a finding of misconduct does not by itself, give rise to a just cause.  Rather the question to be addressed is whether, in the circumstances, the behaviour was such that the employment relationship can no longer viably subsist.”

39.  To summarise, this first line of case law establishes that the question whether dishonesty provides just cause for summary dismissal is a matter to be decided by the trier of fact, and to be addressed through an analysis of the particular circumstances surrounding the employee’s behaviour.  In this respect, courts have held that factors such as the nature and degree of misconduct, and whether it violated the essential conditions of the employment contract or breaches an employer’s faith in an employee, must be considered in drawing a factual conclusion as to the existence of just cause.”

  • In John Jaoko Othino v Intrahealth International [2022] eKLR

100.  Section 44[4] provides for actions and inactions of an employee that may amount to gross misconduct so as to justify his or her summary dismissal.  However, it is not enough for an employer to state that an employee committed one or more of those actions obtaining in the list under the provision. The employer must establish with cogent evidence that there actually existed the misconduct, and that the same was so grave that it intimates the employee’s abandonment of an intention to remain in employment.

Photo by Valeriia Miller on Pexels

Leave a Reply

Your email address will not be published. Required fields are marked *