It is legally very dangerous for employers to discipline and fire employees who commit offences due to illness or disability. For example, an employee who uses alcohol or narcotics and becomes addicted is legally classified as being ill and is protected by law.
Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability or illness. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled. In fact, the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.
Furthermore, section 187(1)(f) of the Labour Relations Act (LRA) says that, “A dismissal is automatically unfair if …. the reason for the dismissal is …. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”
The fact that disability is included in the above list means, for example, that if your receptionist loses an arm in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled receptionist looks bad to customers who come to visit. You would have to prove that this receptionist is in fact unable to work before you could even consider terminating his/her employment.
In the case of Black Mountain vs CCMA and others (2005 1 BLLR 0001) the employee was dismissed for causing damage while drunk driving. The CCMA arbitrator overturned the dismissal. the Labour Court, after looking at the employer’s policy in regard to alcohol related infringements, decided that:
- The employee had been wrong in what he had done
- The employer should have allowed the employee to go for rehabilitation
- The dismissal was unfair
- The employer was required to reinstate the employee and to give him back pay for a period of 18 months, with interest.
In Thompson vs Eskom Holdings (Pty) Ltd [2017] 2 BALR 231 (CCMA) the applicant was dismissed after pleading guilty to cocaine use after previously having been sent for rehabilitation for drug addiction.
The Commissioner found that the employer’s refusal to allow the employee to question the employer’s evidence in aggravation was unfair. This was an irregularity so serious that it could not be cured by a further de novo hearing by the CCMA. The chairperson had wrongly seized on the applicant’s guilty plea to ride roughshod over her rights.
The respondent had made no attempt to investigate the causes of the applicant’s addiction or to consider whether further rehabilitative action might be warranted.
The applicant was reinstated with retrospective effect.
The above cases make it clear that, although employees can be dismissed for abusing sick leave, absence without permission and poor work performance:
- Sick employees are strongly protected from unfair treatment aimed at their disabilities
- Alcohol and drug abuse can be seen as an illness in South African law
- Employers are legally required to adhere to their own policies
- Treatment must be considered before dismissal of a sick employee can be considered
- The incapacity procedure prescribed by law cannot be ignored
- Employees have a right to cross examine their accusers
- Even a guilty plea for drug abuse does not automatically merit dismissal.
Therefore, all employers are advised to:
- Check with a labour law expert as to whether or not the circumstances merit dismissal
- Explore every alternative to dismissal before considering terminating the employment of a sick employee
- Genuinely and thoroughly involve the incapacitated employee in the process of consideration of alternatives giving the employee ample opportunity to state his/her case
- Formally place on record every step taken in the above process
- Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.
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