ALCOHOL ABUSE: MISCONDUCT OR INCAPACITY

1
ALCOHOL ABUSE MISCONDUCT OR INCAPACITY

• INTRODUCTION
• DEVELOPMENT OF THE LAW RELATING TO INTOXICATION
• MISCONDUCT V INCAPACITY
• APPROPRIATE SANCTION
• JURISPRUDENCE

2

• DEVELOPMENT OF THE LAW RELATING TO INTOXICATION
• COMMON LAW
• DEPENDS ON THE FRAMING OF THE CHARGE
• POSSESSION, CONSUMPTION ON DUTY, BLOOD ALCOHOL
  LEVEL IN EXCESS OF X
• SIMPLE TO ESTABLISH
• DIRECT EVIDENCE OF THE CONTRAVENTION
• EG. BREATHALYSER OR BLOOD TEST
• PROOF OF CALIBRATION AND PROPER WORKING ORDER TO
  BE SUBMITTED
• UNDER THE INFLUENCE OF ALCOHOL MORE DIFFICULT
  TO ESTABLISH
• MUTUAL CONSTRUCTION CO TVL (PTY) LTD V NTOMBELA
  NO OTHERS
• EMPLOYERS NOT REQUIRED TO DRAFT CHARGE SHEETS
  THAT MEET THE STANDARDS OF CRIMINAL INDICTMENTS.
• AS LONG AS EMPLOYEE UNDERSTANDS NATURE AND IMPORT
  OF CHARGES HE IS REQUIRED TO ANSWER, WHICH WERE
  MADE STILL CLEARER IN THE LATER DE NOVO
  ARBITRATION PROCEEDINGS

3

• MONDI PAPER CO V DLAMINI
• DRUNK
• TANKER SERVICES (PTY) LIMITED V MAGUDULELA
• MATTER OF DEGREE
• NO LONGER ABLE TO PERFORM THE TASKS ENTRUSTED TO
  HIM WITH THE SKILL EXPECTED OF A SOBER PERSON
• DEPENDS ON THE NATURE AN COMPLEXITY OF THE
  EMPLOYEES TASK
• CAROLISSEN V INTERNATIONAL BROKERS CREDIT
  CONTROL (PTY) LTD
• BREATHALYSER AND/OR BLOOD TESTS NOT NECESSARY,
  SUFFICIENT TO PROVIDE AN EYEWITNESS ACCOUNT.

4

• EXACTICS-PET (PTY) LTD V PATELLA NO OTHERS
• APPLIED NUMSA OBO DAVIDS / BOSAL AFRICA (PTY) LTD
  FACT THAT EMPLOYEE CAUGHT BEFORE ANY SERIOUS
  INCIDENT AROSE DOES NOT MEAN THAT EMPLOYEE SHOULD
  BE TREATED MORE FAVOURABLY THAN THE PERSON WHO
  WAS NOT CAUGHT.
• COMMISSIONER HAD SET IMPOSSIBLE STANDARD OF PROOF
  
• EYES BLOODSHOT, SMELT STRONGLY OF ALCOHOL, WAVING
  HIS HANDS, INCOHERENT TOGETHER WITH RESULTS OF
  THE BREATHALYZER TEST, SUFFICIENT TO CONCLUDE
  UNDER THE INFLUENCE.
• ASTORE AFRICA (PTY) LTD V CCMA OTHERS
• SAME FACTS AS EXACTICS-PET BUT DEGREE CHOSEN BY
  ARBITRATOR "SO DRUNK THAT HIS FACULTIES WERE
  IMPAIRED AS A RESULT OF ALCOHOL CONSUMPTION".
• THE LABOUR REFERRED TO LAC JUDGMENT IN MONDI
  PAPER CO AND HELD THAT THIS DID NOT END THE
  INQUIRY. THE KEY QUESTION, WAS THE DRIVER UNABLE
  TO PERFORM HIS DUTIES BECAUSE OF THE CONSUMPTION
  OF ALCOHOL? THEREFORE REQUIRES PROOF THAT THE
  EMPLOYEE'S ABILITY TO PERFORM HIS OR HER WORK IS
  ACTUALLY AFFECTED.
• CRITIQUE

5

• TOSCA LABS V CCMA AND OTHERS
• REAL TEST WAS WHETHER THE EMPLOYEES COMPETENCE
  TO PERFORM HAD BEEN IMPAIRED.
• IMATU OBO NGCOBO V ETHEKWINI MUNICIPALITY
• NOT ON DUTY AT TIME OF BEING UNDER THE
  INFLUENCE
• SOUTH AFRICAN BREWERIES LTD V CEDRIC KARSTENS AND
  OTHERS
• DETERMINING UNDER THE INFLUENCE TO BE SEEN IN
  THE LIGHT OF THE EMPLOYEES OWN DISCIPLINARY
  GUIDELINES.
• GUIDELINES DEFINED BEING INTOXICATED AND/OR
  UNDER THE INFLUENCE OF ALCOHOL AS HAVING A
  BREATH ALCOHOL CONTENT OF MORE THAN 0,24
  MG/1000ML.
• IN THIS CASE, THERE WAS NO SUCH EVIDENCE. IN
  FACT, THE EMPLOYEES BREATH ALCOHOL LEVEL WAS
  0.00.
• SUMMARY
• CHARGE, EVIDENCE, NATURE OF THE JOB, EMPLOYERS
  DISCIPLINARY GUIDELINES

6

• MISCONDUCT V INCAPACITY
• ITEM 10 OF THE CODE OF GOOD PRACTICE DISMISSAL
• DIFFERENT DEGREES OF TOLERANCE FROM EMPLOYERS
  AND DEALT WITH IN TERMS OF DIFFERENT PROCEDURES
• ALCOHOLISM SHOULD BE RAISED WITH EMPLOYERS AND
  HELP SOUGHT BEFORE ARRIVING AT WORK UNDER THE
  INFLUENCE OF ALCOHOL OR DRINKING ON DUTY.
• CASE LAW
• NAIK V TELKOM SA
• ALCOHOL ABUSE IS A SPECIES OF INCAPACITY
• ALCOHOLISM TO BE DEALT WITH IN TERMS OF
  INCAPACITY PRINCIPLES AND NOT MISCONDUCT.
• RELEVANT CONSIDERATIONS INCLUDE NATURE OF THE
  JOB, EXTENT TO WHICH THE ILLNESS INCAPACITATES
  THE EMPLOYEE, LENGTH OF THE EMPLOYEES ABSENCE
  FROM WORK AND POSSIBILITY OF SECURING TEMPORARY
  REPLACEMENT

7

• WHETHER EMPLOYEES FAILURE / REFUSAL TO
  CO-OPERATE IN ADDRESSING ALCOHOL ADDICTION
  CHANGES THE NATURE OF DISMISSAL FROM INCAPACITY
  TO MISCONDUCT
• PORTNET (CAPE TOWN) V SA TRANSPORT ALLIED
  WORKERS UNION OBO LESCH
• EMPLOYEE AWARE OF RULE, RECEIVED NUMEROUS
  WARNINGS AND STILL FLOUTED RULES KNOWINGLY
• CONSIDERATIONS OF INCAPACITY DISTINGUISHABLE AND
  IRRELEVANT BECAUSE OF FACTS AND EVIDENCE.
• INCAPACITY PROCEDURES OF NO UTILITY DUE TO THE
  EMPLOYEES DISPOSITION.
• ON THE EVIDENCE COMPANY HAS DONE ALL IT
  REASONABLY COULD TO ASSIST THE EMPLOYEE.
  DISMISSAL WAS JUSTIFIED IN TERMS OF THE
  EMPLOYEES MISCONDUCT
• SPOORNET (ERMELO) V SARHWU OBO NKOSI
• EMPLOYEE CAN NOT BE COMPELLED TO ACCEPT
  TREATMENT. REINSTATEMENT SIMPLY LEADING TO A
  REPETITION OF PROBLEMS. THEREFORE DISMISSAL
  JUSTIFIED.
• PPWAWU V NAMPAK CORRUGATED CONTAINERS
• MAY TAKE INTO ACCOUNT UNSUCCESSFUL ATTEMPTS AND
  COSTS INVOLVED.
• EMPLOYEES ABSENCES AND THE DISRUPTIONS ON THE
  EMPLOYERS OPERATIONS.
• EMPLOYER ENTITLED TO DECIDE THAT ENOUGH IS ENOUGH

8

• BLACK MOUNTAIN V CCMA OTHERS
• ONCE THE EMPLOYER HAS DECIDED, OR FORMULATED
  POLICY IN THIS REGARD, IT MAY FIND THE MISCONDUCT
  ROUTE CLOSED OFF ALTOGETHER
• TRANSNET FREIGHT RAIL V TRANSNET BARGAINING
  COUNCIL OTHERS
• ARBITRATOR ERRED BY APPLYING PRINCIPLES OF
  INCAPACITY WHERE EMPLOYEE NOT AN ALCOHOLIC
• OF NO CONSEQUECNCE THAT NO HARM CAUSED
• SAFETY CRITICAL POSITION
• DETERENCE TO OTHER EMPLOYEES
• FINAL WRITTEN WARNING
• COMMISSIONERS FINDING WOULD MAKE THE DISTINCTION
  BETWEEN INCAPACITY AND MISCONDUCT FOR
  ALCOHOL-RELATED MATTERS MEANINGLESS.
• BUILDERS TRADE DEPOT V CCMA AND OTHERS
• FACTS SUBSTANTIALLY SIMILAR TO TRANSNET
• EMPLOYER NOT OBLIGED IN EACH CASE TO INVESTIGATE
  WHETHER EMPLOYEE AN ALCOHOLIC, ESPECIALLY WHERE
  EMPLOYEE DENIES ALCOHOLISM
• ONUS ON EMPLOYEE TO SEEK THE EMPLOYERS HELP
• ONLY THEN OBLIGATION ON EMPLOYER TO TREAT
  EMPLOYEE AS INCAPACITATED

9

• DETERMINING WHETHER TO FOLLOW THE INCAPACITY OR
  MISCONDUCT ROUTE
•  
• THE DECISIONS IN TRANSNET AND BUILDERS TRADE
  DEPOT
• CONFIRM EMPLOYERS ARE NOT OBLIGED IN EACH CASE OF
  INTOXICATION ON DUTY TO INVESTIGATE WHETHER THE
  EMPLOYEE IS AN ALCOHOLIC OR NOT
• ESPECIALLY WHERE THE EMPLOYEE DENIES BEING AN
  ALCOHOLIC AND HAVING CONSUMED ALCOHOL
• IT FOLLOWS THAT IF EMPLOYEE DRIVEN TO DRINK,
  ONUS ON EMPLOYEE TO SEEK THE EMPLOYERS
  ASSISTANCE.
• EMPLOYERS OBLIGATION TO TREAT THEM AS
  INCAPACITATED ARISES ONLY AFTER THEY DO SO.
• IN THE ABSENCE OF THE EMPLOYEE SEEKING THE
  EMPLOYERS HELP OR ALLEGING THAT HE/SHE IS AN
  ALCOHOLIC, ALCOHOL RELATED INCIDENTS ARE TO BE
  TREATED AS CASES OF MISCONDUCT

10

• APPROPRIATE SANCTION
• EMPLOYEES PERFORMING INHERENTLY DANGEROUS JOBS
  ARE MORE CULPABLE
• TAKE INTO ACCOUNT WORKING ENVIRONMENT
• FINCK ANOTHER V OHLSSONS CAPE BREWERIES
• LÖTTER V SOUTHERN ASSOCIATED MALTSTERS (PTY) LTD
• HOTELICCA ANOTHER V ARMED RESPONSE
• PALABORWA MINING COMPANY LTD V CHEETHAM OTHERS
• SENIOR POSITION AND STATUS AN AGGRAVATING FACTOR

11

• JURISPRUDENCE
• INTRODUCTION
• GUILT DETERMINED BY THE CCMA.
• JURISDICTION OF LABOUR COURT EXTENDS ONLY TO
  REVIEW.
• THEREFORE NO CLEAR JURISPRUDENCE ON SANCTION AND
  CATEGORISATION
• GUILT REVIEWS
• REVIEW AGAINST THE DECISION ESTABLISHING
  INTOXICATION.
• OBJECTIVE TEST.
• SIDUMO ANOTHER V RUSTENBURG PLATINUM MINES LTD
  OTHERS
• WHETHER DECISION WITHIN A RANGE OF DECISIONS THAT
  A REASONABLE DECISION-MAKER COULD REACH IF FACED
  WITH THE SAME CASE
• DISTINCTION BETWEEN REVIEWS AGAINST FINDING OF
  GUILT V SANCTION.

12

• AVRIL ELIZABETH HOME FOR THE MENTALLY HANDICAPPED
  V CCMA
• WHEN A COMMISSIONER ERRED BY APPLYING A STANDARD
  STRICTER THAN PROOF ON A BALANCE OF
  PROBABILITIES, THE AWARD IS REVIEWABLE
• CATEGORISATION REVIEWS
• INCORRECT CATEGORISATION OF AN INTOXICATION CASE
  AS MISCONDUCT AND NOT AS INCAPACITY
• DECISION NOT REVIEWABLE IF ONE A REASONABLE
  DECISION MAKER COULD HAVE MADE.
• NUM ANOTHER V SAMANCOR LTD (TUBATSE
  FERROCHROME) OTHERS
• IN THOSE CIRCUMSTANCES ERROR NOT MATERIAL TO
  OUTCOME.
• REASONING SHOWS HE WOULD HAVE REACHED THE SAME
  CONCLUSION IF DISMISSAL NOT CATEGORISED.
• DOES NOT FOLLOW FROM ERROR THAT AWARD SO
  UNREASONABLE THAT IT FALLS TO BE SET ASIDE.

13

• SANCTION REVIEWS
• IN THE WAKE OF SIDUMO
• ALMOST NO BAR TO COMMISSIONERS CONFRONTED WITH
  FACTS LIKE THOSE IN ASTORE AFRICA, MONDI PAPERS,
  TANKER SERVICES AND EXACTICS-PET FROM FINDING
  THAT, IRRESPECTIVE OF THE DEGREE OF THE
  EMPLOYEE'S INTOXICATION, DISMISSAL WAS
  NEVERTHELESS AN APPROPRIATE PENALTY FOR MERELY
  HAVING CONSUMED ALCOHOL OR VICE VERSA .
• Whatever ones personal view may be, the test is
  whether or not the arbitrators decision that
  dismissal is an appropriate sanction is a
  decision that a reasonable decision-maker could
  reach
• WASTEMAN GROUP V SAMWU OTHERS
• The commissioner is required to come to an
  independent decision as to whether the employers
  decision was fair in the circumstances, these
  circumstances being established by the factual
  matrix confronting the commissioner.

14

• PALABORWA MINING COMPANY LTD V CHEETHAM OTHERS
• SENIOR POSITION AND STATUS AN AGGRAVATING FACTOR
• LC DISMISSAL SUBSTANTIVELY UNFAIR DUE TO
  FAILURE TO GIVE ADEQUATE REGARD TO EMPLOYEES
  PERSONAL CIRCUMSTANCES
• LAC OVERTURNED DECISION OF LC ON THE BASIS OF THE
  SIDUMO
• SOUTH AFRICAN BREWERIES LTD V CEDRIC KARSTENS AND
  OTHERS
• THE COMMISSIONER DECIDES WHETHER THE DECISION TO
  DISMISS WAS FAIR. IT IS THE COMMISSIONERS OWN
  SENSE OF FAIRNESS THAT MUST PREVAIL. NO DEFERENCE
  TO THE EMPLOYER
• TAXI-TRUCKS PARCEL EXPRESS (PTY) LTD V SATAWU AND
  OTHERS
• THE COMMISSIONERS DECISION WAS WITHIN A RANGE OF
  REASONABLE OUTCOMES AND ACCORDINGLY THE AWARD WAS
  NOT REVIEWABLE
• VERY DIFFICULT TO OBTAIN A CLEAR PRECEDENT ON THE
  ISSUE OF SANCTION BECAUSE HIGHER COURTS DEAL WITH
  THE ISSUES OF INTOXICATION ONLY AS REVIEW COURT

15
CONCLUSION QUESTIONS