Case Name:
Transnet Freight Rail v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCJHB 15 (4 March 2011)
Area of Law:
Labour re: Alcoholism in the work place: misconduct versus incapacity.
Brief Facts / Summary:
This was an appeal of an arbitration decision in favour of an employee. The question before the Labour Court was whether alcohol abuse should be treated as misconduct rather than incapacity in circumstances where the employee is not an alcoholic.
The employee that was dismissed for ‘serious misconduct’ due to reporting for work under the influence of alcohol, was employed by Transnet as a yard marshal which is a ‘safety critical position’.
When the employee was dismissed, she had already been given a final written warning for reporting to work under the influence of alcohol on previous occasions.
In arbitration, the employee argued that she drank due to personal circumstances. It was held that the employer did not afford the employee any assistance regarding rehabilitation in terms of its “Employee Assistance Programme”, and prematurely dismissed the employee.
The Labour Court first looked at the difference between incapacity and misconduct. Alcoholism is a form of incapacity which requires counselling and rehabilitation, which may both be appropriate measures to be undertaken by the employer (Code of Good Conduct: Dismissal), however, where an employee is not an alcoholic and does not claim to be one, and said employee reports to work under the influence of alcohol, said employee will be guilty of misconduct.
The CCMA has accepted that alcoholism is a disease and should be treated as such. In instances of incapacity, the employee is not responsible for his/her behaviour and disease, and discipline such as dismissal, would be inappropriate. Job function, seniority and job safety are all factors to be taken into account.
It was held that the employee was not incapable of performing her functions, but had rather made herself guilty of misconduct by reporting for work under the influence of alcohol after repeated warnings, as well receiving a lecture from her employer on the dangers of alcohol at work. It was established as common cause that the employee was not an alcoholic; therefore the employee was not obliged to offer the employee assistance and counselling.
Held: The arbitration award in favour of the employee was corrected and set aside.
Importance / Value:
If an employee is found to be an alcoholic, there is an obligation on the employer to offer the employee assistance and counselling before considering immediate dismissal taking into account the relevant factors and circumstances surrounding the employee.
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