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A gambling addict stole money from his employer and gambled the money away. The employee offered to repay the employer for the stolen money and asked to be allowed to go for rehabilitation. The employer fully accepted that the employee was a gambling addict and that he stole the money. However, the employer refused the employee’s offers to repay the money and to receive treatment and fired him for gross dishonesty at a disciplinary hearing. Was the employer entitled to discipline and fire the employee or was it obligated to follow Schedule 8’s ill-health incapacity process?
I follow a simple rule: the difference between will not (misconduct) and cannot (incapacity). An addict (of whatever kind – alcoholic, drugs, sex etc) cannot control their addiction without help. Therefore the employee’s behaviour is indicative of incapacity and should be treated as such. If after rehab the behaviour persists (ie the gambling not the theft) then the employer should convene an incapacity hearing to determine whether there are alternatives to dismissal (transfer the employee to a position where they do not have access to money) or dismiss.
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