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Home Wrong behaviour Misconduct How to tackle substance abuse at the workplace: Case law

How to tackle substance abuse at the workplace: Case law

Camilla Rose

Earlier this week, I spoke about how – if you want to take action against an employee you suspect of abusing alcohol or drugs – you can legally do this, according to the Labour Relations Act (LRA). I described two cases that deal with this issue and this week, I will talk about five more.

  • In the 2006 case of Morris:

- The employer was a labour broker who had provided the employee's services to a company with a zero-tolerance policy on substance abuse.

- The evidence showed that the employee had consumed several alcoholic drinks on the evening before a work day.

- On arrival at work, he was given a breathalyser test that confirmed there was alcohol present in his bloodstream. A private doctor could find no trace of alcohol in his system when tested two hours later.

- The employee was refused entry to the workplace, charged with reporting for duty while intoxicated, and dismissed.

- The CCMA found that his dismissal was unfair and awarded him compensation. This was because the evidence showed that the employee had merely tested positive for alcohol but no evidence showed that he was intoxicated.

- The charge had been intoxication and not mere testing positive for alcohol. On review, the court upheld the CCMA's award. While the CCMA and court had no difficulty with the employer's decision to follow the misconduct path rather than the ill-health route, in this case the employer hadn't proved the employee was guilty of the misconduct he was charged with.

  • In the 2008 case of Arangie:

- An employee suspected of being under the influence of alcohol at work was instructed to undergo a breathalyser test but refused.

- He was charged with refusal of a reasonable instruction and was dismissed. The CCMA upheld his dismissal.

- On review, the Labour Court found that the CCMA had misconstrued the employer's own policies. The employer's policy expressly stated that no employee was obliged to undergo a breathalyser test. This means that the incident couldn't justify a dismissal for insubordination.

- The award was set aside not because the wrong procedure was followed but because the charge wasn't in line with the employer's own policies.

  • In the 2010 case of Mahlangu:

- A public service employee's employment was terminated by way of a statutorily deemed discharge after 30 days' absence from work without leave. The employer invited the employee to make submissions as to why he ought to be reappointed.

- The employee responded that he was an alcoholic and sought re-appointment.

- The employer instructed the employee to undergo an examination by a doctor of its choice, which he did. The doctor advised that the employee be afforded the opportunity to undergo rehabilitation, with a view to returning to work.

- The employer rejected this recommendation and refused to reappoint the employee.

- The employee approached the court to review and set aside this refusal. While the application failed for technical reasons, the court was sympathetic to the employee and pointed out that there was a distinction between alcohol abuse, which constituted misconduct, and alcoholism, which was an illness and called for a 'no fault' approach.

Had the case concerned a dismissal rather than a deemed discharge, the matter may well have gone the way of the employee, on the basis that the employer should've followed the ill-health procedure, and failed to do so adequately.

  • Two 2011 judgments were handed down by a single judge of the Labour Court, dealing with very similar cases. These were the matters of Transnet and Builders Trade Depot:

- Both matters involved an employee who had an existing written warning for intoxication at work. Both repeated the same offence and were dismissed for misconduct.

- In one matter, the employee, who held a responsible position affecting the safety of others, was found not to be an alcoholic. In the other, the employee vehemently denied that he had any drinking problem.

- In both matters, at arbitration the dismissals were found to be substantively unfair, and the employees were reinstated – one with no back pay and on a final written warning, and the other with limited back pay and an order to undergo rehabilitation.

- On review, the court pointed out that an employer is under no duty to counsel or provide assistance to access rehabilitation to an employee who doesn't suffer from drug or alcohol dependency. Only in the case of dependency, which is recognised as a disease, does the incapacity procedure apply.

- The court pointed out that, as the employees were not alcoholics, the normal rules of misconduct applied.

- The Transnet award was reviewed and set aside, and the dismissal for misconduct was upheld as fair because the employer was under no duty to allow the employee to undergo rehabilitation. The Builders Trade Depot award was reviewed and set aside because the offence was so serious that dismissal for misconduct was justified, and progressive discipline didn't require the prior issuing of a final written warning.

Where an employee claims to suffer from a dependency problem, the employer should assess this to decide whether to treat the matter as one of incapacity or misconduct. However where an employee expressly denies having a dependency problem, recent judgments suggest that the employer need not take the enquiry further, but may safely default to the misconduct procedure.

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.