Warning for employers in South Africa who want to dismiss these employees

Legal experts warned that dismissing employees struggling with substance dependency, such as alcoholism, without treating it as a medical incapacity, could render the dismissal procedurally and substantively unfair.

This was explained by Werksmans Attorneys Director Bradley Workman-Davies, Senior Associate Nasheetah Smith, and Candidate Attorney Isabella Keeves.

“One of the challenges faced by most employers today is the increase in substance dependence by employees and the effect it has on the workplace,” they said. “The critical question is whether an employer should treat such issues as misconduct or incapacity.”

According to Workman-Davies, Smith and Keeves, using prohibited substances in the workplace would generally be considered misconduct.

“However, where an employee is dependent on a prohibited substance, an employer must treat this as a medical condition which requires special consideration,” they said.

Substance dependency can impact every aspect of a person’s life. When it comes to a dependent’s career, it can create a host of consequences.

“However, what is key to understand about alcoholism in the context of employment relations is that this must be treated as a substance dependency issue, and accordingly, as a disease, irrespective of how it manifests,” they said.

“What flows from this is that in South African labour law, employees who exhibit alcoholism must be treated in terms of medical incapacity procedures and not misconduct or disciplinary procedures.”

This was exemplified in the recent case of PSA obo Randolph van Wyk v Department of Social Development: Western Cape Provincial Government and Others.

In this case, an employer dismissed their employee for “unauthorised absenteeism” after disciplinary action was taken against him for repeatedly being absent from work.

The reason for the repeated absenteeism was that the employee was struggling with alcohol dependency and mental and physical health problems.

These facts were established based on the employee’s attendance at counselling sessions, admissions to treatment facilities, and medical evaluation reports.

However, the employee claimed these factors were not considered during his employer’s enquiry into his conduct.

The employee challenged his dismissal on the basis that the enquiry and eventual dismissal, being centred around misconduct, should instead have been centred around incapacity.

Since this was not what happened, the employee argued that his dismissal was both procedurally and substantively unfair.

The matter was referred to the CCMA, where the arbitrator agreed and found that the procedure the employer should have followed was an incapacity enquiry. Despite this, the arbitrator still upheld the dismissal for unauthorised absenteeism as fair.

Considerations for employers

Workman-Davies, Smith and Keeves explained that establishing whether the enquiry should be based on misconduct or incapacity matters is because of the Code of Good Practice: Dismissal.

This code establishes clear and comprehensive guidelines for how an employee should be addressed, depending on the cause of the issue.

Where an employee is potentially incapacitated, the code states that the employer must exhaust all other alternatives before dismissing them.

“In particular, where an employee is struggling with a dependency on substances, the employer is obliged to look into counselling and rehabilitation,” they said.

“In short, the code expressly provides that ‘the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances’.”

Workman-Davies, Smith, and Keeves said the PSA judgement draws attention to the fact that an employee must be found to be at fault before a dismissal for unauthorised absenteeism can be reached.

“Because alcoholism is a disease, the impact thereof on the employee’s conduct and behaviour is through no fault of their own,” they explained.

The PSA judgement relied on the verdict handed down in the 2011 case of Transnet Freight Rail v Transnet Bargaining Council and Others.

The court made it clear that “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”.

“The purpose of placing such a duty on an employer is based on the current medical understanding of alcoholism – that it is a diagnosable and treatable disease,” the court continued. “This disease results in the employee’s incapacity.”

Considering the above, the court found the dismissal substantively and procedurally unfair, and the employee was reinstated.

The PSA judgement highlights the importance of employers knowing that, should an employee be experiencing difficulty as a result of a medical condition, including alcohol dependency, the employee may be in need of medical support.

In the case of alcoholism, the employee may need rehabilitation or professional medical assistance to deal with the substance dependency.

Workman-Davies, Smith, and Keeves said that in certain circumstances, employers may be obligated to assist employees with this or another medical condition.

“Importantly, employers must understand that in such a context the employee is not necessarily acting wilfully,” they said.

“The more appropriate enquiry to be conducted is one into whether the employee, due to their medical condition, is incapacitated in their ability to perform their work.”

They added that shaping the enquiry around understanding rather than punishment is key to ensuring that the matter is addressed in a substantively and procedurally fair manner and that the employee is recognised and properly assisted.