Whether it is an employee reporting for duty under the influence of alcohol, consuming alcohol while on duty, reporting late for duty, being absent from work or simply failing to comply with basic duties and responsibility for reasons related to alcohol, every employer has, at least once, had to deal with alcohol-related offences.
Where an employee commits these offences, such employee is defying the company’s rules and policies which are considered misconduct. In such instances, the employer should institute disciplinary action against the employee.
However, when faced with the situation where an employee is incapable of performing their duties due to alcohol abuse, how should an employer proceed?
Schedule 8 of the Labour Relations Act (LRA) states that where an employer suspects an employee of having an alcohol dependency problem, the employer must treat the matter as an incapacity instead of misconduct. Section 10(3) of the Code of Good Practice places an obligation on the employer to offer counselling and rehabilitation as suitable measures to assist the employee in dealing with their problem.
In the in the case of Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 LC 1.25.1 Judge Steenkamp set out the differences between misconduct and incapacity (involving alcohol). The reasons provided by the judge assist us in understanding how to differentiate between misconduct and incapacitate.
The judge stated that where an employee is not an alcoholic and does not profess to be an alcoholic, there is no obligation on the employer to investigate the matter and should proceed with disciplinary action.
Alcoholics should not be blamed for their consumption of alcohol, as they suffer from a disease and cannot control their consumption. Therefore, a fault is the primary factor that employers should consider in determining whether to follow the misconduct or incapacity route (ill-health inquiry).
This does not mean that every employee charged with an alcohol-related offence can simply claim that they are alcoholics in an attempt to exempt themselves from blame and subsequent disciplinary action. Medical evidence and/or proof need to be submitted to the employer for the employer to make an informed decision.
It is, therefore, concluded that where an employee does not inform his employer that he has an alcohol dependency problem or does not produce proof of such disease to the employer and commits offences, the employer should follow the misconduct route.
Where an employee admits to having a problem with alcohol and produces medical proof or evidence substantiating their problem, such employee suffers from the disease of alcoholism and the employer is compelled to proceed with the matter in terms of Item 10 of the Code of Good Practice and hold an ill-health inquiry for such an employee.
ABOUT THE AUTHOR
Kamini Moodley received her LLB and LLM degrees from the University of KwaZulu-Natal in 2013 and 2014 respectively. After completing her studies, Kamini served her articles at a civil litigation firm and was admitted as an attorney in 2016. Kamini joined SEESA as a Labour Legal Advisor in May 2017.