Kenya Airways’ decision to sack a pilot who refused to fly a faulty plane has come back to haunt the national carrier, which now risks paying John Miriti Mbarire Sh181 million.
Mr Mbarire had his contract terminated for causing a 34-minute delay in a flight from Nairobi to Kisumu in 2017, and for allegedly using wrong channels to request a sick day.
The pilot was at the time five years from retirement so he wants KQ ordered to pay his salary and allowances for the period, totalling Sh170.3 million, and damages of Sh11.3 million for unlawful dismissal.
Had he completed the last 69 months of his flying career at KQ, Mr Mbarire would have earned Sh65.2 million in salaries, Sh95.9 million in flying allowances, Sh6.2 million in insurance cover for himself and his family and Sh3 million in travel allowances.
KQ insists it rightfully dismissed the pilot. In its defence, the national carrier insists that Mr Mbarire had a history of run-ins with authorities and that his responses were considered insufficient by a panel that presided over his disciplinary hearings.
On March 25, 2017, a Kenya Airways flight from Nairobi to Kisumu was delayed by 34 minutes.
Five days later Mr Mbarire, who was in charge of the flight, was served with a notice to show why he should not be punished for causing the delay and bringing KQ’s brand to disrepute.
He said he could not guarantee regular braking once the aircraft touched the ground at Kisumu International Airport.
In his response to the show cause letter, however, he said he feared stress from the two flights he had completed that day did not make him the best person to fly the plane to Kisumu.
The pilot also argued that a colleague who last flew the aircraft had mentioned mechanical problems which he noticed as he directed the flight to Mombasa. That was the third time the aircraft had exhibited mechanical problems on that day.
He said he feared it was too risky to fly the plane to Kisumu, which was at the time experiencing rainfall and thunderstorms, meaning the aircraft needed more than the 1,400 metres of available runway to safely land.
However, Kenneth Githuku, a chief pilot with KQ, claimed at the disciplinary hearings that the problem was attended to by engineers."
Henry Obare, who chaired the panel that heard Mr Mbarire’s disciplinary case, ruled that Mr Mbarire should have mentioned his stress level earlier, and that declining to fly to Kisumu at the last minute showed a “don’t-care attitude".
The Kenya Airline Pilots Association, which made submissions at the disciplinary hearing, claimed the pilot who replaced Mr Mbarire on the Kisumu flight wound up overshooting the runway.
But the KQ management denied that this was the case and noted that the airline’s procedure requires individuals to follow up on requests for time off and ensure they get a response.
KQ added that in 2013, Mr Mbarire was cited for not being a team player due to showing a negative attitude at a flight training exercise in South Africa.
The airline also argued that he was cited for raising his voice at a crew member during a briefing before a flight in 2014.
The citation arose from a complaint by the crew member.
Mr Mbarire admitted to raising his voice and pointing at the crew member with a clipboard.
He however said the verbal altercation was because the crew member was distracting the briefing by constantly laughing out loud.
On April 8, 2017, Mr Mbarire sent an email to his employer saying he was unwell so he could not fly the following day as scheduled.
Two weeks later, he received another show-cause letter in which he was accused of requesting sick leave against the procedure of calling the crew scheduling department.
But the pilot said his calls to the department went unanswered and that he decided to send the email in the afternoon to notify the relevant individuals.
In court, Bajaber Abubakar, another KQ chief pilot, said Mr Mbarire had had several disciplinary cases since joining the carrier under the defunct Flamingo Airlines, which was a subsidiary.
Mr Abubakar said Mr Mbarire missed two flights while working under Flamingo in 2002.
“In conclusion, Kenya Airways avers that Mr Mbarire’s termination was procedural and fair, therefore the “particulars of loss and damage” enumerated in his memorandum of claim are ill-informed, unwarranted and not in the least bit substantiated,” he said in an affidavit.
Mr Mbarire initially appealed the panel's decision to sack him but was asked to retake examinations and medical tests as a precondition for returning to work.
But he argued that he feared KQ would delay the tests to lock him out and asked the airline to waive the conditions.
KQ eventually responded by terminating his contract.
The suit is yet to be heard at the Milimani Employment and Labour Relations Court.