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 VDLAMINI • “DRUNK” • TANKER SERVICES (PTY) LIMITED VMAGUDULELA • 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 EMPLOYEE’S TASK • CAROLISSEN V INTERNATIONALBROKERS & 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 EMPLOYEE’S 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 EMPLOYEE’S 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 EMPLOYEE’S BREATH ALCOHOL LEVEL WAS 0.00. • SUMMARY • CHARGE, EVIDENCE, NATURE OF THE JOB, EMPLOYER’S 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 EMPLOYEE’S ABSENCE FROM WORK AND POSSIBILITY OF SECURING TEMPORARY REPLACEMENT

7. WHETHER EMPLOYEE’S FAILURE / REFUSAL TO CO-OPERATE IN ADDRESSING ALCOHOL ADDICTION CHANGES THE NATURE OF DISMISSAL FROM INCAPACITY TO MISCONDUCT • PORTNET (CAPE TOWN) VSA TRANSPORT & ALLIED WORKERS UNION OBOLESCH • 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 EMPLOYEE’S DISPOSITION. • ON THE EVIDENCE COMPANY HAS DONE ALL IT REASONABLY COULD TO ASSIST THE EMPLOYEE. DISMISSAL WAS JUSTIFIED IN TERMS OF THE EMPLOYEE’S 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 ACCOUNTUNSUCCESSFUL ATTEMPTS AND COSTS INVOLVED. • EMPLOYEE’SABSENCES AND THE DISRUPTIONS ON THE EMPLOYER’S OPERATIONS. • EMPLOYER ENTITLED TO DECIDE THATENOUGH IS ENOUGH

8. BLACK MOUNTAIN V CCMA & OTHERS • ONCETHE EMPLOYER HAS DECIDED, OR FORMULATED POLICY IN THISREGARD, IT MAY FIND THE MISCONDUCT ROUTE CLOSED OFFALTOGETHER • 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 • COMMISSIONER’S 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 EMPLOYER’S 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 EMPLOYER’S ASSISTANCE. • EMPLOYER’S OBLIGATION TO TREAT THEM AS “INCAPACITATED” ARISES ONLY AFTER THEY DO SO. • IN THE ABSENCE OF THE EMPLOYEE SEEKING THE EMPLOYER’S 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. • GUILTY OR NOT GUILTY IS SIMPLY A FACTUAL ADJUDICATION WHICH DOES NOT INVOLVE A VALUE JUDGMENT. COURT MUST ASSESS WHETHER REASONABLE CORRELATION BETWEEN COMMISSIONER’S FINDINGS AND EVIDENCE

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 SERVICESANDEXACTICS-PETFROM 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 one’s personal view may be, the test is whether or not the arbitrator’s 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 employer’s 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 EMPLOYEE’S 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 COMMISSIONER’S OWN SENSE OF FAIRNESS THAT MUST PREVAIL. NO DEFERENCE TO THE EMPLOYER • TAXI-TRUCKS PARCEL EXPRESS (PTY) LTD V SATAWU AND OTHERS • THE COMMISSIONER’S 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