When is a dismissal fair in alcohol abuse cases?
Johanette Rheeder

Every chairperson, when deciding on a sanction, must go through a process where he or she decides whether dismissing the employee is the right or fair thing to do. Fairness, as some may be surprised to note, applies not only to the employee but also to the employer! In Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC) [also reported at [2004] 3 BLLR 199 (LAC) the Court stated that the concept of fairness, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case. In judging fairness, a person or a court will apply a moral or value judgment to established facts and circumstances, and in doing so it must have due regard to the objectives sought to be achieved by the LRA.

The test of fairness as it applies in dismissal for alcohol abuse, was again considered and applied in the case of Builders Trade Depot v CCMA & others [2012] 4 BLLR 343 (LC). In this case, the dispute arises from the dismissal of the employee by the applicant employer. It is common cause that the employee had been drinking whilst on duty and that, at the time of his dismissal, there was an existing written warning pertaining to the same offence applicable to him. It is also common cause that he is a relief forklift driver, but he was not fulfilling those duties on the date in question, as a salesman, he was dealing with members of the public. The commissioner nonetheless found his dismissal to have been unfair. The employer sought to review the reinstatement award and a rescission award by another commissioner prior to the arbitration. The employer’s branch manager visited the store on the day and spoke to the employee. He could smell alcohol on his breath and noticed that he was unsteady on his feet and slurred his speech, and that his eyes were bloodshot. The employee failed a breathalyzer test, whereupon he admitted to drinking beer during his lunch. The employee vigorously denied that he had a drinking problem.

The Court then considered whether being under the influence of alcohol is a misconduct and if so, what evidence is required to prove the misconduct?

Section 10(3) of the Code of Good Practice: Dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by an employer in assisting such employees. The requirement to assist alcoholic employees by providing them with treatment has been widely accepted. 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. However, when an employee who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, he is guilty of misconduct and not incapacitated. In this regard, Grogan states in his book Workplace Law that employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, according to the learned author, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity.

It is clear that in certain contexts, being intoxicated on duty, can be treated as a disciplinary offence. Therefore, the court found that the category of misconduct for reporting for duty under the influence of alcohol has not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer from 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.

Grogan said that the Labour Court found an employee to be ‘under the influence of alcohol’ if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. The evidence required to prove that a person has infringed a rule relating to consumption of alcohol or drugs depends on the offence with which the employee is charged. Many employers choose the offence of being over a certain limit. The evidence then relies on the breathalyzer test applied and its result. Often the evidence or the defence will become technical in nature, in order to prove that the equipment has been calibrated and the test applied correctly or not.

If employees are charged with being ‘under the influence’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyser tests, evidence of their behaviour, smell of alcohol and slurred speech.

The Court found that in the current case, based on his own observations and the breathalyser test, the employer formed the view that the employee was unable to perform his duties. Even though he was driving a forklift on the day, he had to interact with members of the public. His intoxicated state and the smell on breath would have led to embarrassment for the company.

The Court then found that the Commissioner sought to impose “a greater duty” on the employer to find out what was causing the employee’s drinking, despite the fact that the employee was adamant that he was not an alcoholic; that the Commissioner accepted this; and that the employee had a written warning for similar misconduct against him.
The Court then looked at the question of how to then determine the appropriate sanction?

With regard to sanction, section 3 of Schedule 8: The Code of Good Practice: Dismissal places an expectation on employers to use corrective and progressive discipline in dealing with the misconduct of employees.

In cases involving misconduct for reporting for duty under the influence of alcohol a commissioner should, in determining the fairness of dismissal, consider and weigh against each other among other things:

 

  • That the employee knew of the rule and was aware that breaching it could result in dismissal;
  • That the employee wilfully committed the misconduct;
  • The nature and responsibilities of the employee’s job function;
  • The basis for the employee’s challenge to dismissal;
  • The importance of the rule breached;
  • The principles and necessary application of progressive discipline and the importance of consistency;
  • The employee’s disciplinary record, including the presence or lack of any relevant valid warnings of final written warnings that may be in effect; and
  • The harm (or potential to bring harm) as a result of the misconduct.
  • A further consideration ought to be the implications of being lenient in the application of an important rule and the message such leniency sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust.

Johanette Rheeder

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