An employer recently remarked to me that the time is fast approaching when an employee will have to kill somebody before his/her conduct can be construed as sufficient to merit dismissal. While this is an exaggeration the Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in recent articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.
This leaves employers at a loss as to when offending employees may or may not be dismissed. One view that appears to be emerging is that the seriousness of the employee’s offence must no longer be measured by the potential effect of the misconduct but rather by the actual effect thereof.
In the case of NUMSA obo Davids vs Bosal Africa (Pty) Ltd (1999 10 BALR 1240) the employee was dismissed for being under the influence of alcohol at work. The facts proved that there were no actual consequences of the employee working while under the influence of alcohol. That is, the employee had been operating a crane for three hours before his condition was discovered. He had been doing his work efficiently for all that time and had caused no damage of any kind. The trade union therefore argued that the alcohol in the employee’s system was not sufficient to intoxicate him and was not sufficient to impair his ability to work. However, the arbitrator found the dismissal to be fair because of the danger that the employee’s condition posed of injury to others and damage to the employer’s reputation.
In the case of NUMSA obo Motsele vs Haggie Wire and Strand (2006, 2 BALR 163) the employee again argued that, while he had been drinking alcohol he was not drunk and his ability to work was not impaired. Nevertheless, he was dismissed because his alcohol test showed that he was intoxicated. The arbitrator upheld this decision after finding that:
- There was sufficient evidence to show that the employee was intoxicated
- the employee denied that his condition had impaired his ability to work and that this denial counted against him!
- the employee was aware of the potential consequences of his actions
- the employer is entitled to set standards of conduct which arbitrators should not lightly interfere with.
The arbitrator found that the employee’s conduct rendered continuation of the employment relationship intolerable.
The above cases showed that the employer was entitled to set its own standards for employee conduct and to dismiss employees for conduct that might be seen as potentially dangerous even if there had not been any actual damage done.
However, in the case of Astore Africa (Pty) Ltd vs CCMA and others (2008, BLLR ) a very different approach was taken. A key reason for this appears to be that fact that the alcohol tests done in the above two cases showed how much alcohol was in the employee’s system while the test applied in the Astore case only showed the presence of alcohol. In this case the employee had not caused any damage to property while driving the company vehicle. However, his speech had been slurred and he had been tested for alcohol consumption by a client where he was supposed to have been delivering goods. Despite this, both the CCMA and the Labour Court (on review) found that the slurred speech might not have been due to the employee’s consumption of alcohol. They found that there was insufficient proof that the amount of alcohol in the employee’s system impaired his ability to do his work. On this basis they found that the dismissal was unfair.
In labour law employers are not required to prove their charges against employees beyond reasonable doubt. They are only required to prove their allegations on balance of probability. In this case it is clear that:
- the employee did indeed have alcohol in his system; the alcohol test result was not disputed,
- the employee’s condition was so apparent that the employer’s client tested him,
- he had alcohol on his breath,
- and his speech was slurred.
The arbitrator acknowledged that slurred speech can be an indication of the person being under the influence of alcohol. However, he added that this will not always be the case as slurred speech can also result from tiredness. However, applying the facts of the positive alcohol test result, the red eyes and alcohol breath it is clear, in terms of the principles of balance of probabilities, that the slurred speech showed that the employee was intoxicated.
The Astore decision is yet another in a growing line of decisions that could drive employers to drink. However, a less dangerous and more effective remedy would be to utilise labour law expertise as soon as alcohol related cases arise.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Web Address: www.labourlawadvice.co.za.
To book for our 13 April 2018 seminar in Johannesburg on RADICAL ECONOMIC TRANSFORMATION – SIGNIFICANCE FOR YOUR WORKPLACE please contact Ronni via [email protected] or 0845217492.