Jan Du Toit
In terms of the Occupational Health and Safety Act General Regulations, employers are responsible to ensure that employees that seem to be under the influence of an intoxicating substance, or consume such a substance in the workplace are not allowed on the premises of the company. Many employers, as a result of the mentioned regulations, implemented strict rules in the workplace dealing specifically with the use of alcohol (or any other intoxicating substances) and measures that may taken against offenders.
Examples of such rules could be that an employee may not consume any intoxicating substance prior to reporting for duty. As a result of this rule it would be an offence if an employee reported for duty with his or her breath smelling of alcohol. In terms of the company’s disciplinary code the employee may now be subjected to progressive disciplinary measures such as written warnings and ultimately the termination of the employment relationship.
It could however happen that an employee reports for duty quite frequently with the smell of alcohol on his / her breath, leading the employer to believe that the employee may have a dependency problem. In terms of item 10 of Schedule 8 of the Labour Relations Act alcoholism and drug abuse are considered to be forms of incapacity and should therefore not be dealt with in terms of the disciplinary code of the company. In such instances appropriate measures to address the situation will be counselling and rehabilitation. The employer will therefore have to actively attempt to assist the employee in overcoming his or her dependency problem and as a result it may be recommended that the employee participates in a rehabilitation programme.
The question that must now be answered is when does misconduct become incapacity in terms of the employee that constantly arrives at work either smelling of alcohol or that is actually under the influence thereof?
In Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 LC 1.25.1 an employee, Ms. Louw, was dismissed for arriving at work under the influence of alcohol in 2009. She was employed as a yard official, which involves marshalling and coupling of trains and her position is as such considered to be a safety critical position. Due to the nature of the work the offence of being under the influence of alcohol at work constitutes serious misconduct in terms of Transnet’s disciplinary code.
At the time of her dismissal she still had a valid final written warning on her file for arriving at work under the influence of alcohol. At the arbitration hearing SATAWU disputed both the procedural and substantive fairness of the employee’s dismissal in that, inter alia, the employee was not afforded rehabilitation in terms of Transnet’s Employee Assistance Program (“EAP”).
The Commissioner found that the chairperson of the enquiry was well versed with Transnet’s EAP as well as the employee’s personal problems. According to the Commissioner the Chairman could have recommended counselling as a form of action to address the employee’s misconduct. The Commissioner further reasoned that the employee’s final written warning was only four days away from expiring, indicating that she took the warning seriously and that because Louw was not allowed to work on that day, neither applicant nor Transnet’s passengers were placed in danger.
The Commissioner ordered reinstatement, one month’s salary as compensation and that Louw was to submit to rehabilitation in terms of the employer’s substance abuse policy and to comply with such policy.
Transnet took this on review to the Labour Court arguing that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings. According to Transnet the Commissioner failed to have regard for the principles distinguishing misconduct from incapacity and, more specifically, that the evidence and common cause facts were that the employee was not an alcoholic and did not suffer from alcoholism. Transnet further argued that the Commissioner exceeded his powers by making an award requiring Louw to submit to rehabilitation and to comply with the company policy. Such an award is not contemplated in the context of the powers afforded to Commissioners in determining a dismissal dispute.
Turning to the question whether Louw should have been dealt with in terms of Transnet’s disciplinary code or in terms of incapacity, Judge Steenkamp said that in terms of section 10(3) of the Code of Good Practice, alcoholism is specifically mentioned as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken to assist such employees.
“In fact, the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such.
Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The employee is not at fault for his / her behaviour and cannot be blamed for their disease and its impact on their behaviour, discipline would be inappropriate in the circumstances.
An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit.”.
Judge Steenkamp found that the Commissioner’s award that Louw was to submit to rehabilitation in terms of Transnet’s substance abuse policy and to comply with that policy was inconsistent with the proven facts that Louw was guilty of misconduct. The Commissioner made a decision that a reasonable decision-maker could not make. The award was set aside.
Employers are advised to introduce alcohol and substance abuse policies in the workplace as well as a basic Employee Assistance Program. In terms of such a policy employees may be disciplined for misconduct if they do not have a dependency problem; employees that do have a dependency problem will be dealt with and assisted in terms of the EAP. It is further recommended that employees who make themselves guilty of misconduct under this policy are asked, every time corrective measures are taken against the employee, whether they have a dependency problem. This way the employer will be able to show that the employee did not have a dependency problem and merely claimed to have problem in order to be saved from a dismissal for misconduct.
The topic of this document is one of the modules that are discussed in our one day “Managing Problem Employees” seminar. Enquiries can be addressed to Peraldo Senekal –
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Jan du Toit is available to assist employers with disciplinary enquiries and ccma matters. He can be contacted on
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