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How to tackle substance abuse at the workplace

Camilla Rose

Substance abuse by an employee can present you with a complex problem. It's often unclear how the situation should best be dealt with to ensure your solution is fair and effective - and doesn't fall foul of labour laws. When confronting substance abuse, you're faced with obligations under a number of laws. This article focuses on consequences under the Labour Relations Act (LRA) when you want to take action in response to an employee's suspected or known substance abuse, which is causing problems at the workplace.

The Code of Good Practice on Dismissal, which is annexed to the LRA, sets out guidelines for cases when:

  • An employee commits misconduct, or
  • Where an employee's ill health interferes seriously with his or her work.

Different considerations apply in each case and you will probably be familiar with these.

Be careful to characterise ill-health situations correctly!

If you wrongly characterise an ill-health situation as one of misconduct, you could face dire consequences at the CCMA if you dismiss an employee following on from a disciplinary hearing.

So how would you classify a workplace situation involving drug use or alcohol abuse? As misconduct or an ill-health situation?

In recent years, a number of Labour Court judgments have provided guidance to employers in these scenarios.

  • In the 1998 case of Mondi:
    - The employee became drunk while on duty.
    - He was dismissed following a fair hearing but the CCMA reinstated him because the employer had not initiated alcoholism counselling and rehabilitation under the ill-health procedure.
    - On review, the Labour Court found that this was not a case of simple alcoholism. The employee had crossed the line to misconduct when he had consumed alcohol at work and had unreasonably refused to undergo a breathalyser test.
    - The court agreed that the employer was entitled to treat the matter as one of misconduct.
    - The award was set aside and the dismissal was upheld.

  • In the 2001 case of Reckitt:
    - The employee had a history of being absent from work and taking excessive sick leave.
    - After several disciplinary warnings for absenteeism, the employer discovered that the employee was in fact an alcoholic.
    - The employer counselled the employee and offered him the opportunity to undergo rehabilitation.
    - After a temporary improvement, the employee relapsed and the employer found itself back at square one. The employer's efforts - over an extended period - to assist the employee were to no avail.
    - While the CCMA found that the employer had not exhausted the ill-health procedure before dismissing the alcoholic employee, the Labour Court didn't fault the employer's handling of the matter. It found that the dismissal was a last resort, and the employer had done all that could've been expected of it. The employer was found to have correctly followed the ill-health route, and the dismissal was fair.

The gist of the case law is that the involvement of alcohol or drugs in a workplace dilemma doesn't automatically make the matter one of misconduct or of ill health.

You have a duty to:

1. Assess each case on its own merits, and

2. Consider whether the employee suffers from a dependency problem, or is merely an abuser.

In the former case, the ill-health procedure would be appropriate. In the case of ill health, you're expected to go to greater lengths to accommodate and assist the employee, given that the matter doesn't concern fault, as such.

However, if the employee simply abused alcohol or drugs - and thereby contravened a workplace rule, with fault and without dependency playing a role - the misconduct procedure would be appropriate. Where disciplinary charges are brought, these must be carefully framed to demonstrate actual misconduct and to be in line with your own policies.

Next time we will consider five further cases that shed light on this area.

Camilla Rose (BSocSci LLB cum laude, UCT) is an attorney of the High Court of South Africa. She has practised extensively in both private commercial and public interest law environments for over a decade. Her diverse clients have spanned private individuals, communities, non-governmental organisations, micro-, small and medium businesses, trade unions and organs of state. She has been recognised as a finalist in the prestigious South African Businesswomen's Association's Regional Business Achiever Awards. She has served on the internationally acclaimed TOKISO Dispute Resolution panel as well as the ground-breaking Land Rights Management Facility panels (for litigation and mediation) of the Department of Rural Development. She practises in Cape Town's southern suburbs.