BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: email@example.com. Website address: www.labourlawadvice.co.za.
It is legally risky for employers to fire an employee for using alcohol or drugs. This is because, where the employee is addicted, he/she is legally classified as being ill and is protected by law.
Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability or illness. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.
Furthermore, section 187(1)(f) of the Labour Relations Act (LRA) says that, “A dismissal is automatically unfair if …. the reason for the dismissal is …. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”
The fact that disability is included in the above list means, for example, that if your receptionist loses an arm in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled receptionist looks bad to customers who come to visit. You would have to prove that this receptionist is in fact unable to work before you could even consider terminating his/her employment.
In the case of Black Mountain vs CCMA and others (2005 1 BLLR 0001) the employee was dismissed for causing damage while drunk driving. The CCMA arbitrator overturned the dismissal. The employer applied to the Labour Court for the arbitrator’s decision to be reviewed. However, the Labour Court, after looking at the employer’s policy in regard to alcohol related infringements, decided that:
- The employee had been wrong in what he had done
- The employer should have allowed the employee to go for rehabilitation
- The dismissal was unfair
- The employer was required to reinstate the employee and to give him back pay for a period of 18 months
- The employer was to pay this money to the employee with interest.
However, drug related dismissals will not always be unfair. In the case of Mthembu & others vs NCT Durban Wood Chips (2019, 4 BALR 369 CCMA)the 3 employees tested positive for dagga at the workplace. The employees had used the dagga at home but it was still in their systems when they got to work. The arbitrator noted that the Constitutional Court had ruled that private use of dagga is legal. However, the arbitrator found that this did not automatically prevent employers from disciplining employees found with dagga in their systems. Due to the specific nature of the employers operations and the fact that the employees knew that dagga use at work was prohibited the arbitrator found the dismissal to be fair.
The above cases make it clear that:
- Genuinely addicted employees are legally ill and are thus strongly protected from unfair treatment aimed at their disabilities
- Treatment must be considered before dismissal of a sick employee can be considered
- The incapacity procedure prescribed by law cannot be ignored
- The legalisation of private dagga use is not a licence to be under the influence of dagga at the workplace
- Above all there is no standard answer to the question as to whether drug dismissals are fair as the fairness will depend on the unique circumstances of each case.
Therefore all employers are advised to:
- Check with a labour law expert as to whether or not the circumstances merit dismissal and if so, whether the disciplinary or incapacity process should be used
- Genuinely and thoroughly involve the employee in the legally appropriate process and give the employee ample opportunity to state his/her case;
- Formally place on record every step taken in the above process;
- Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.
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