THURSDAY, OCTOBER 9, 2014 - 00:00 -- BY CAROLE MAINA
THREE Seventh Day Adventist Church members employed by a bank have won a battle after the High Court ruled that their rights were violated by the employer compelling them to work on Saturdays.
Prisca Kemboi, Grace Osoro and Kennedy Tai, who work for the Kenya Post Office Savings Bank, had been accused and each surcharged more than Sh20,000 for absconding duty on Saturday.
Yesterday, Justice Linet Ndolo of the Industrial Court ruled that the bank's action was in violation of their right to observe their day of worship.
The judge directed Post Bank to review its policy on hours of work to accommodate all SDAs' rights to observe their day of worship on Saturday.
Ndolo further banned the bank from taking disciplinary action against any SDA for skipping work on Saturday.
“Matters of conscience and religion are uniquely personal and for an employer to simply insist that its employees must report to work on Saturday and ignore their day of worship is to miss the point,” she ruled.
Among the fundamental tenets of the SDA faith is the observance of the hours between sunset on Friday and sunset on Saturday as a day of worship.
Before, the three had not been required to work on Saturdays.
The court heard that the bank had generally allowed arrangements such as working through the lunch break, working extra hours in the evenings and on Sundays to compensate for the half day work hours that they did not serve on Saturdays.
However, the bank recently cancelled the arrangements and compelled the three to work on Saturdays.
When they failed to do so, the bank instituted disciplinary proceedings and warned that failure to observe official working hours would lead to more severe disciplinary action.
Their appeal against the decision was rejected.
It was the petitioner’s argument that the bank's actions was in contravention of the constitution, which guarantees them freedom of conscience, religion and belief and equality and freedom from discrimination.
The three accused the bank of favouring the Islamic faith, whose worshipers are allowed to be absent from work on Fridays to observe their day of worship.
In response, bank’s company secretary Mercy Mbijiwe said the three had accepted their responsibilities with full knowledge and understanding of the duties and especially the requirement to work six days a week.
She maintained that Saturday is an official working day for all its employees and what the three were seeking is to be given preferential treatment at the expense of others.
The bank said granting orders in favour of the three would open a pandora's box where employees of diverse religions will insist on taking time off to observe their various days of worship.
In the judgment, Justice Ndolo said an employee who is denied the opportunity to observe their day of worship will not be productive.
"A human resource policy that does not accommodate the unique spiritual needs of employees is unreasonable," she ruled.