I recently transferred to LabourNet East London and in the first week I received an Arbitration award from one of our consultants, as usual I read the whole case and my conclusion was that I disagree with the findings and perspective taken by the commissioner presiding over a matter relating to an employee attending work whilst under the influence.
At this point you might be thinking why I disagreed with an educated commissioner of the CCMA, the answer to that question is at the core of this article, and we however need to consider the merits of the case at hand to understand my intended change of perspectives and interpretation.
In short the employee was charged for reporting for duty whilst under the influence of alcohol, the notice was issued on the employee and a disciplinary inquiry was conducted. The employee had a final written warning on file for a similar offence and he was thus dismissed as this was a second offence. Further to the above mentioned the company had a standing Zero tolerance policy for the offence and the employee was aware of such. The employee felt that the matter was dealt with unfairly and he referred the matter to the CCMA. The core of the article again is to unpack and redirect the perception and interpretation of the commissioner that presided over the matter, needless to say that our courts have adopted the same approach and perspective.
The hearing was conducted procedurally fair by the LabourNet consultant as LabourNet guarantees such, however the commissioner found that the dismissal was substantively unfair (reason for dismissal) despite the valid final written warning and the zero tolerance policy. The commissioner referred to Astore Africa (Pty) Ltd v CCMA and others (2008 1 BLLR 14, LC) and found that the company should have proven that the offence has rendered the employee incapacitated to the extent that the employee was incapable of performing his duties. The above thus begs the question how does one unpack incapacitated and then how do you prove that in arbitration. Does one consider the legal driving limit of 0.05 as per the Road Traffic Act or do you look if the employee is unable to stand straight?
In my view as an Industrial relation practitioner incapacity is defined under the Labour Relations Act as an instance where the person is incapable of performing his/her duty. In my view an employee who was not permitted on site due to the zero tolerance approach thus was incapable of performing his/her duty. The deeper context of the above was found in the Health and Safety Act regulations under general safety 2A (1) that reads “subject to the provisions of the sub regulation (3), an 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 remain at the workplace”
My interpretation of the above is that the employee is not permitted inside the workplace if under the influence of liquor or drugs, thus he is incapable of performing his duty’s for the day. With the above I have drawn my opinion that the employee was legitimately incapacitated for the fact that he tested positive for being under the influence and was not permitted on site by the zero tolerance approach and the health and Safety Act Regulations as referred to above. The above interpretation and perspective satisfy the requirement from the commissioner stating that the employer should prove that the employee was incapacitated on the day in question as he was incapable of performing any duty.
In conclusion I am of the view that an employer could establish during the arbitration proceedings that the employee is incapable of performing his duty “incapacity through the provision and interpretation of the Health and Safety Act regulations”. Thus in my view the reasoning of the commissioner and the courts was limited, thus the matter should be deemed substantively fair as the requirement (from commissioner and courts) is established by interpretation of the said regulations and the matter should be ruled in favor of the employer if and when an employer argues incapacity as such.
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