Good day everyone and welcome back to another discussion in our What If series. We will bring you insights in the format of a what if question on the ever evolving landscape of employment law. My name is Ross Simon from Maserumule Corporate Employment Law, and in today's discussion we're unpacking “what if an employee struggles with substance dependency, Employer duties and obligations explained”.
One of the challenges faced by many employers today is the rise in substance dependency among employees and the serious effect it can have in the workplace. It is an issue that forces employers to ask, should we treat this as misconduct or as incapacity?
Ordinarily, using alcohol or prohibited substances at work would amount to misconduct, but where an employee suffers from dependency, the law treats that dependency has a medical condition, a disease that requires understanding and assistance, rather than punishment.
Why does the distinction matter? The Code of Good Practice Dismissal makes a clear distinction between these two categories. If an employee has a dependency issue, the employer must follow the incapacity process, not the disciplinary route. That means investigating the nature and extent of the incapacity, exploring counselling or rehabilitation, and considering reasonable accommodation before dismissal.
This principle was recently tested in the Labour Court case of PSA obo Randolph van Wyk v Department of Social Development, Western Cape Provincial Government and others. The employee employed as an administrative officer was dismissed for unauthorized absenteeism after repeated absences from work.
The reasons for those absences, however, was well documented. He was struggling with alcohol dependency, he suffered from major depressive disorder, and he faced serious physical health complications. He had voluntarily entered rehabilitation, attended counseling sessions and was under medical supervision.
Despite this, his employer treated the situation as misconduct and held a disciplinary inquiry. No real consideration was given to his medical condition or the possibility of incapacity. The commissioner at the CCMA even acknowledged that the employer should have followed the incapacity process but still upheld the dismissal.
When the case went on review, the Labour Court took a very different view. It found that the arbitrator and the employer had mischaracterized the problem. The court relied on the both the Code of Good Practice and the earlier case of Transnet Freight Rail Verse Transnet Bargaining Council and others which recognized 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 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. This disease results in the employees incapacity because absenteeism requires fault and there was no fault on the employee's part.
The court found that his dismissal for misconduct was both substantively and procedurally unfair. The employer demonstrated a willingness to recover, had engaged in treatment, had not acted woefully.
The correct route was medical incapacity, not discipline. The court therefore set aside the arbitration award and reinstate the employee with full effect.
This case underscores several key takeaways.
- Recognize substance dependency as a medical condition.
- Alcoholism is not a moral collapse collapsing, it is a disease that can cause incapacity following incapacity procedure.
- Investigate, consult and consider treatment or rehabilitation before deciding on dismissal.
- Document every step.
- Keep records of the counselling, referrals and medical input to show fair processes were followed.
- Avoid disciplinary shortcuts, dismissing A dependent employee for an authorized absence without understanding the root causes, risks, and unfair dismissal finding.
Ultimately, the law expects employers to respond with understanding rather than punishment, thereby shaping the inquiry around support and rehabilitation, not blame.
That brings us to an end of this week's discussion. Thank you for joining us. We hope you have found it informative. If you have any questions or comments, we'd love to hear from you. You can find us on social media or you can e-mail me on ross@masconsulting.co.ca. Until next time, bye bye.
