Substance Abuse and Incapacity

“Addiction begins with the hope that something ‘out there’ can instantly fill up the emptiness inside.” – Jean Kilbourne

Article by Wessel Brits and Nichole Turner (Senior Labour Advisors)

Introduction

As we have started a new year, employees find themselves growing weary, perhaps opting to escape reality through substance abuse, whether alcohol and/or drugs. The effect of which may result in relief for a short period of time, but can lead to over exhaustion; perpetuating the cycle of weariness; further clouding mental faculties; isolation and possible psychosis.

In a recent article, MISA addressed the elements of Misconduct when reporting for duty under the influence of alcohol, citing the Mbali decision. In today’s article, we discuss substance abuse as far as it relates to incapacity. 

Substance Abuse: Misconduct or Incapacity?

If an employee regularly drinks and/or uses drugs at work or regularly arrives at work under the influence and is unable to control himself, the conduct becomes one of incapacity, rather than misconduct. On the contrary, an employee who can control himself and fails to, such conduct becomes misconduct.

In Transnet Freight Rail v Transnet Bargaining Council & Others (2011) JOL 2699 (LC), the Labour Court (LC) held “the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct. 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 that it should be treated as such”. The LC further stated, “Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. 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 incapacity of the employee. In terms of how to deal with the employee, the distinguishing feature in such cases of alcoholism appears to be, as with all instances of incapacity, that the employee is not at fault for her behaviour – the employee cannot be blamed for their disease and its impact on their behaviour and discipline would be inappropriate in the circumstances”.

Employer’s Obligations

Section 8(1) of the Occupational Health and Safety Act 58 of 1993 (OHSA), places duty on employers to provide and maintain a safe and healthy working environment. In addition, regulation 2A of OHSA provides that “any employer or user, as the case may be, shall not permit any person who is, or who appears to be under the influence of intoxicating liquor or drugs, to enter or to remain at a workplace. Furthermore, “no person at a workplace shall be under the influence of or have in his/her possession or partake of or offer any other person intoxicating liquor or drugs.”

Intoxication is not only a safety concern (for the employee himself, but for the other employees as well), it has the potential to cause reputational damage.

Employee’s conduct outside of the workplace

Employers have an interest in its employee’s conduct outside the workplace, only to the extent that it may have an effect on his/her capacity to perform the required duties, during working hours or where the employee’s conduct can be shown to have brought the good name of the employer into disrepute.

However, item 10 of the Code of Good Practice on Dismissal (Code) endorses the view that disciplinary action may not always be appropriate in dealing with alcohol or drug abuse and that counselling and rehabilitation may be appropriate. It stipulates “… In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.”

Incapacity and Rehabilitation

In Transnet, the LC further stated “…Rehabilitative steps need not be undertaken at the employer’s expense, unless provision is made for them in a medical aid scheme.” Therefore, the only expectation is for the employer to provide access to treatment.

If an employee undergoes rehabilitation, and later reverts to his/her old habits, the employer may follow due process and dismiss the employee.

Conclusion

It is always wise to stay sober and face life as it happens, as the results in not doing so can be detrimental, especially if you find yourself lucky enough to be still employed.

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance: 

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 4763920 / 0718809682    

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku