In a previous article published on the 21st of January 2021, we addressed the problematic issue of employers proving that an employee is under the influence of alcohol. The article also included guidelines to ensure that the employer’s case is proven on a balance of probabilities. But what happens if an employee claims to have a drinking problem, and for that reason, the employee came to work intoxicated.
Alcoholism is deemed an illness.
The Employment Equity Act citation refers to criteria whereby an employee may not be unfairly discriminated on, and this is why you need to, as an employer, establish from the employee if this “misconduct” was an isolated offence or does the employee have an underlying substance or alcohol abuse problem.
As alcohol-related offences are usually seen in a serious light, we recommend that the employer establish the employees’ alcohol status in a formal disciplinary hearing. In the hearing, if the employee confirms that they do not have a substance or alcohol abuse problem, you may minute and discipline the employee according to your company’s disciplinary code.
If, however, the employee confirms to have a substance or alcohol abuse problem, the burden of proof shifts to the employer to prove that the employees’ statement is false, which would be extremely difficult to do without medical or other proof. In cases like this, the employer needs to be very careful, as an illness, namely alcoholism, now causes the employee’s misconduct.
The employer will have to convert the formal disciplinary hearing into a medical incapacity inquiry to address the employee’s medical condition. A formal notice to attend a medical incapacity inquiry will have to be given to the employee to prepare. As the employee admitted to having a substance or alcohol abuse problem, the employer needs to address the reasons for this problem and how the employer can help the employee with this illness. This could include but is not limited to; unpaid time off to seek help or sort out the issues which relate to the substance or alcohol problem, assistance with helping the employee to find a program to treat his substance abuse problem, or any other assistance, which is reasonable, which the employee may request.
The employer can give all the assistance possible, and the employee can still fail if they do not wish to help themselves. Because of this, it is of utmost importance that the employer puts the employee on formal terms (warning the employee). We usually recommend that the employer writes the employee a formal letter whereby you discuss in short, the minutes of the medical incapacity inquiry and that the employer will give assistance in areas where they can. This should be done right after the medical incapacity inquiry was done with the employee. The employer, however, needs to be firm in the letter whereby the employee is made aware that the company cannot allow that the employee to come to work under the influence of substances or alcohol again due to the company’s operational needs as well as the Operational Health and Safety Act. Should this happen again, the employee’s services could be terminated due to this illness and unwillingness to get the help they need.
This letter, as all formal documents, needs to be served on the employee and a copy of the served and signed letter needs to be added to the file of the employee. The medical incapacity will then be deemed finalised.
Should the employee report for duty whilst under the influence of substances or alcohol again, the employee will be subjected to another medical incapacity enquiry. In this medical incapacity enquiry, the letter needs to be handed in as evidence as proof of the company placing the employee on formal terms. As with all medical incapacity enquiries, a recommendation needs to be made. Considering all the factors that lead to the employee relapsing, the time that had elapsed since the previous medical incapacity enquiry, and other factors, it is possible that the employee’s services could be terminated based on a medical incapacity.
As medical incapacity is a no-fault process, there will be a notice period attached to the dismissal, which the employer will have to consider.
There are a lot of factors that need to be weighed up when it comes to terminating an employee for a medical reason, such as a substance or alcohol abuse problem.
Contact your SEESA Labour Legal Advisor to assist your business with any queries regarding disciplinary action in the workplace. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the Author:
Gysbert Janssen started his career at SEESA in 2017 and is currently a Labour Legal Advisor at SEESA’s Cape Town branch. He is also a High Court Admitted Attorney.
Resources:
Occupational Health and Safety Act 85 of 1993