Jansen and Pressure Concepts (2005) 26 ILJ 2064 (BCA)

Principle:

The failure to reasonably accommodate an employee with an alcohol problem prior to dismissal may render the dismissal unfair.

Facts:

The employee was employed as a welder on 2 March 2004 and was dismissed for poor time-keeping on 9 February 2005. He also received a final written warning on 9 November 2004 for arriving at work under the influence of alcohol, and on 24 January 2005 was sent home for being under the influence of alcohol. The employer's records showed a long history of late coming and absence without leave, which the employer alleged had precipitated the decision to take disciplinary action against the employee. The employee maintained that his daughter had developed a drug problem, which had precipitated his drinking, and his absences while seeking help from social workers, and that he had notified the employer of this and had sought help. He claimed his dismissal was therefore unfair.

Referring to the Code of Good Practice: Dismissal, the arbitrator found that it was a reasonable and valid rule that employees arrive at work on time, and that the employee knew of it. However, the rule had not been applied consistently, as the employee was given no clear indication that if he continued to arrive late he would be dismissed. Also more serious offences such as arriving at work under the influence of alcohol had not resulted in dismissal. This did not show a consistent application of workplace rules.

In considering whether dismissal was an appropriate sanction the arbitrator found that the reason advanced by the employee for his poor time-keeping indicated that he was suffering from an alcohol-related problem, and that the employer had a duty to manage the disciplining of the employee on the basis of incapacity. Proper consideration had not been given to this problem, and the employer had failed in its duty of accommodation in the light of the employee's alcohol problem. These factors rendered the dismissal substantively unfair. The employer was ordered to re-employ the employee from the date of the arbitration, subject to a written warning for poor time-keeping, and to attempt to assist the employee with his alcohol problem.

Extract from the judgment:

[At p 2072]   I have considered the question of how far this duty on the employer, to accommodate the employee, extends. A smaller employer will clearly be less well-positioned to assist an employee with alcohol related problems than a larger employer. There was no evidence before me as to the size of the employer in this case. However I formed the impression that it was a relatively small employer, if only because the managing director appeared in person at the arbitration hearing of an individual employee.

However slight the duty on the employer was, however, the employer certainly had a duty to at least give due weight and consideration to the problem, and to make some attempt, however small, to assist the employee. The employer can be expected to have attempted to seek out and provide some form of counselling for the applicant, once it had been made aware that his problem was alcohol related. The applicant resides in Atlantis, an area well-known for its poverty and attendant social problems. The employer has a certain level of social responsibility in relation to the employees it draws from this area and from whose labour it benefits.

The chairman, in arriving at his decision to dismiss the employee, ignored the applicant's plea of incapacity due to alcohol abuse. In his summary he only indicates that the applicant justified his absence without leave and said that his late-coming benefited the company. At the arbitration hearing this same chairperson denied that the applicant had ever raised the alcohol problem with him. This was incorrect. I find that proper consideration was not given to this problem, and that in this the employer erred.

[At 2073]   The Labour Relations Act provides that reinstatement or re-employment is the primary remedy for unfair dismissal. I can find no basis in s 193 to award compensation to the applicant for his unfair dismissal instead of reinstatement or re-employment. However in recognition of the applicant's degree of fault in this case, I determine re-employment, not reinstatement, to be the appropriate remedy.

The employer must re-employ the applicant in the work in which the applicant was employed before the dismissal, as from the date of the arbitration being 19 May 2005.

The employer must give the applicant a written warning for poor time-keeping. The employer must attempt to assist the applicant with his alcohol problem. Any further disciplinary problems with the applicant as a result of alcohol abuse must be dealt with by the employer in terms of the appropriate procedure in relation to incapacity.