One issue which many employers struggle with, is that if an employee commits an alcohol-related offence in the workplace, how do you label it to begin with?
In other words, should it be seen as a form of incapacity or of misconduct? After all, simply
determining this can alter the entire way you handle the incident.
In the following case, some light will be shed on the issue. Take a look...
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CASE: Transnet Freight Rail v Transnet Bargaining Council and others (LC Case no.: C644/2009 Date of judgment: 4 March 2011)
What were the facts of the case?
In the following case, the employee, who was a yard official (marshalling and coupling of trains) was dismissed after she attended work under the influence on the 29th
of 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 to 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.
But 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'. And personal problems aren't
necessarily considered a disease like alcoholism. So it doesn't relate to incapacity but rather misconduct.
The Labour Court drew upon section 10 (3) of the Dimissal 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's no alcoholism present, or if it's not claimed, then the employee will be guilty of misconduct.
The Labour Court also noted that the relevance of expired warning letters of the employee can be taken into consideration when looking
at the whole picture of an employee's misconduct.
Also, remember that the sanction you apply 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 you learn from this case?
When an employee, who's not an alcoholic, or doesn't claim to be one, comes to work under the influence, she'll be guilty of misconduct and NOT incapacity, and so the relevant law must be applied as such; and
Expired written warnings could be used to show a consistent problem in an employment record.
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