Is alcohol abuse misconduct or incapacity?
Many employers struggle with this issue. If an employee commits an alcohol-related offence in the workplace, how does the employer label it?
In other words, should it be seen as a form of incapacity or misconduct? After all, simply determining this can alter the entire way an incident is handled.
Transnet Freight Rail v Transnet Bargaining Council and others (LC Case no.: C644/2009 Date of judgment: 4 March 2011)
The facts of the case
The employee, who was a yard official (marshalling and coupling of trains) was dismissed after she attended work under the influence on 29 May 2009.
The employee’s position is considered to be a ‘safety-critical’ position and so, being under the influence while operating in that position is seen as very serious by Transnet.
She already had been given an official written warning for attending work under the influence, which had expired just over 12 months before the second incident, which subsequently brought about her dismissal (it was valid for 12 months).
The case went to arbitration to challenge the grounds of the dismissal.
What happened at the arbitration hearing?
One of the main points argued was that the employee was not offered rehabilitation in terms of the employer’s ‘Employee Assistance Programme’ for her alcohol abuse.
It was then decided that the employer could have recommended counselling to deal with the employee, after which the employee was reinstated.
However, the case went on review….
What happened on review?
On review, the Labour Court OVERTURNED the Arbitrator’s decision and confirmed the employee’s dismissal as fair.
It was pointed out that the Arbitrator failed to distinguish between incapacity due to alcoholism and misconduct where alcoholism is not claimed. In other words, alcoholism is seen as a disease and therefore a form of incapacity,
The employee was not an alcoholic, but simply came to work under the influence because of ‘problems’. Personal problems are not necessarily considered a disease like alcoholism. So it does not relate to incapacity but rather misconduct.
The Labour Court drew upon section 10 (3) of the Dismissal Code of Good Practice, which specifically refers to an employer’s obligation to assist employees suffering from alcoholism with counselling and support where possible. But that if there is no alcoholism present, or if it is not claimed, then the employee will be guilty of misconduct.
The Labour Court also noted that the relevance of expired written warnings of the employee can be taken into consideration when looking at the whole picture of an employee’s misconduct.
It has to be remembered that the sanction that is applied to an employee, especially dismissal, must be shown to be fair and justifiable in the circumstances. In the above-mentioned case, the employee’s job was seen as very important to overall safety.
What can be learned from this case?
1. When an employee, who is not an alcoholic, or does not claim to be one, comes to work under the influence, he/she would be guilty of misconduct and NOT incapacity, and so the relevant law must be applied as such; and
2. Expired written warnings could be used to show a consistent problem in an employment record.