ALCOHOL ABUSE: MISCONDUCT OR INCAPACITY
INTRODUCTION
 DEVELOPMENT OF THE LAW RELATING TO INTOXICATION
 MISCONDUCT V INCAPACITY
 APPROPRIATE SANCTION
 JURISPRUDENCE
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%
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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
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MUTUAL CONSTRUCTION CO TVL (PTY) LTD V NTOMBELA NO & OTHERS
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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
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MONDI PAPER CO V DLAMINI
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TANKER SERVICES (PTY) LIMITED V MAGUDULELA
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“DRUNK”
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 INTERNATIONAL BROKERS & CREDIT CONTROL (PTY) LTD
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BREATHALYSER AND/OR BLOOD TESTS NOT NECESSARY, SUFFICIENT TO PROVIDE
AN EYEWITNESS ACCOUNT.
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EXACTICS-PET (PTY) LTD V PATELLA NO & OTHERS –
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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
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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
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TOSCA LABS V CCMA AND OTHERS
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IMATU OBO NGCOBO V ETHEKWINI MUNICIPALITY
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NOT ON DUTY AT TIME OF BEING “UNDER THE INFLUENCE”
SOUTH AFRICAN BREWERIES LTD V CEDRIC KARSTENS AND OTHERS
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REAL TEST WAS WHETHER THE EMPLOYEE’S COMPETENCE TO PERFORM HAD BEEN
IMPAIRED.
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
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CHARGE, EVIDENCE, NATURE OF THE JOB, EMPLOYER’S DISCIPLINARY GUIDELINES
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
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NAIK V TELKOM SA
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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
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WHETHER EMPLOYEE’S FAILURE / REFUSAL TO CO-OPERATE IN ADDRESSING ALCOHOL
ADDICTION CHANGES THE NATURE OF DISMISSAL FROM INCAPACITY TO MISCONDUCT
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PORTNET (CAPE TOWN) V SA TRANSPORT & ALLIED WORKERS UNION OBO LESCH
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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
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SPOORNET (ERMELO) V SARHWU OBO NKOSI
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EMPLOYEE CAN NOT BE COMPELLED TO ACCEPT TREATMENT. REINSTATEMENT
SIMPLY LEADING TO A REPETITION OF PROBLEMS. THEREFORE DISMISSAL JUSTIFIED.
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PPWAWU V NAMPAK CORRUGATED CONTAINERS
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MAY TAKE INTO ACCOUNT UNSUCCESSFUL ATTEMPTS AND COSTS INVOLVED.
EMPLOYEE’S ABSENCES AND THE DISRUPTIONS ON THE EMPLOYER’S OPERATIONS.
EMPLOYER ENTITLED TO DECIDE THAT ENOUGH IS ENOUGH
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BLACK MOUNTAIN V CCMA & OTHERS
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TRANSNET FREIGHT RAIL V TRANSNET BARGAINING COUNCIL & OTHERS
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ONCE THE EMPLOYER HAS DECIDED, OR FORMULATED POLICY IN THIS REGARD, IT MAY
FIND THE MISCONDUCT ROUTE CLOSED OFF ALTOGETHER
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
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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”
DETERMINING WHETHER TO FOLLOW THE INCAPACITY OR
MISCONDUCT ROUTE
 THE DECISIONS IN TRANSNET AND BUILDERS TRADE DEPOT
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CONFIRM EMPLOYERS ARE NOT OBLIGED IN EACH CASE OF INTOXICATION ON DUTY TO
INVESTIGATE WHETHER THE EMPLOYEE IS AN ALCOHOLIC OR NOT
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ESPECIALLY WHERE THE EMPLOYEE DENIES BEING AN ALCOHOLIC AND HAVING
CONSUMED ALCOHOL
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IT FOLLOWS THAT IF EMPLOYEE “DRIVEN TO DRINK”, ONUS ON EMPLOYEE TO SEEK THE
EMPLOYER’S ASSISTANCE.
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EMPLOYER’S OBLIGATION TO TREAT THEM AS “INCAPACITATED” ARISES ONLY AFTER
THEY DO SO.
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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
APPROPRIATE SANCTION
 EMPLOYEES PERFORMING INHERENTLY DANGEROUS JOBS ARE MORE CULPABLE
 TAKE INTO ACCOUNT WORKING ENVIRONMENT
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FINCK & ANOTHER V OHLSSONS CAPE BREWERIES
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LÖTTER V SOUTHERN ASSOCIATED MALTSTERS (PTY) LTD
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HOTELICCA & ANOTHER V ARMED RESPONSE
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PALABORWA MINING COMPANY LTD V CHEETHAM & OTHERS
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SENIOR POSITION AND STATUS AN AGGRAVATING FACTOR
JURISPRUDENCE
 INTRODUCTION
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GUILT DETERMINED BY THE CCMA.
JURISDICTION OF LABOUR COURT EXTENDS ONLY TO REVIEW.
THEREFORE NO CLEAR JURISPRUDENCE ON SANCTION AND CATEGORISATION
 GUILT REVIEWS
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REVIEW AGAINST THE DECISION ESTABLISHING INTOXICATION.
OBJECTIVE TEST.
SIDUMO & ANOTHER V RUSTENBURG PLATINUM MINES LTD & OTHERS
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WHETHER DECISION WITHIN A RANGE OF DECISIONS THAT A REASONABLE
DECISION-MAKER COULD REACH IF FACED WITH THE SAME CASE
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DISTINCTION BETWEEN REVIEWS AGAINST FINDING OF GUILT V SANCTION.
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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
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AVRIL ELIZABETH HOME FOR THE MENTALLY HANDICAPPED V CCMA
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WHEN A COMMISSIONER ERRED BY APPLYING A STANDARD STRICTER THAN
PROOF ON A BALANCE OF PROBABILITIES, THE AWARD IS REVIEWABLE
 CATEGORISATION REVIEWS
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INCORRECT CATEGORISATION OF AN INTOXICATION CASE AS MISCONDUCT AND NOT
AS INCAPACITY
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DECISION NOT REVIEWABLE IF ONE “A REASONABLE DECISION MAKER COULD HAVE
MADE.”
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NUM & ANOTHER V SAMANCOR LTD (TUBATSE FERROCHROME) & OTHERS
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IN THOSE CIRCUMSTANCES ERROR NOT MATERIAL TO OUTCOME.
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REASONING SHOWS HE WOULD HAVE REACHED THE SAME CONCLUSION IF
DISMISSAL NOT CATEGORISED.
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DOES NOT FOLLOW FROM ERROR THAT AWARD SO UNREASONABLE THAT IT
FALLS TO BE SET ASIDE.
 SANCTION REVIEWS
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IN THE WAKE OF SIDUMO
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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 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”
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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.”
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PALABORWA MINING COMPANY LTD V CHEETHAM & OTHERS
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SOUTH AFRICAN BREWERIES LTD V CEDRIC KARSTENS AND OTHERS
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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
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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
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
CONCLUSION
QUESTIONS