Portnet (Cape Town) and SATAWU on behalf of Lesch (2002) 23 ILJ 1675 (ARB)

Principle:

Where an employee with an alcohol problem refuses to co-operate and the employer has taken all reasonable steps to assist the employee, dismissal for misconduct, rather than incapacity, is justified.

Facts:

The employee was dismissed for being under the influence of alcohol while on duty and verbally abusing his supervisor. The arbitrator was of the view that when a person has received numerous offers of help and warnings, and still flouts the rules, the company was justified in dismissing him. Considerations of incapacity were distinguishable and irrelevant because of the facts. He found that incapacity procedures would not have had any utility because of the employee's disposition. The arbitrator found the sanction of dismissal to be appropriate.

Extract from the award:

[at p 1687] It was common cause that both the company and the union had been aware of the problem that the employee had been facing, namely that of alcoholism. They were aware of the concomitant problems caused by this and how it impacted on the employee and his work environment. The company's contention that it had done enough for the employee is not without any foundation in fact. The union could not say specifically how the company could have done more, particularly where the employee proved to be non-cooperative. Company representatives offered help to the employee on numerous occasions over a long period and still he continued to deny the extent of his problems.

The employee was well aware of the rule prohibiting working under the influence of alcohol and the intrinsic consequences for his fellow workers. In my view, when a person has received numerous warnings regarding such conduct, and still flouts the rules knowingly in the way the employee had done, leads me to believe that the company was justified in dismissing the employee for misconduct.

Here considerations of incapacity are clearly distinguishable and irrelevant because of the facts and evidence before me. In my view, incapacity procedures (although a prima facie valid consideration in relation to the facts) would not have any utility due to the employee's disposition. Therefore, on the basis of the evidence before me, I regard the company as having done all it reasonably could to assist the employee and that dismissal was justified in terms of the employee's misconduct.

I have considered the issue involving the delays caused in bringing the matter to arbitration and the potential prejudice to the employee. It seems to me as if the old adage that justice delayed is justice denied could be considered appropriate in these circumstances. The evidence tendered by the union here proved extremely tenuous since Mr Cooney provided no direct evidence nor did he produce correspondence to show how he had attempted on numerous occasions to place the employee's concerns on record, and seek the necessary cooperation from company representatives in bringing the matter to arbitration. Instead he stated in his 'representative' capacity how he had made various efforts by verbally approaching company representatives.

Equally, the company attempted to justify its role in the delay, citing capacity and human resource problems, but this also proved very thin. I am left to conclude that both the company as well as the union are guilty of contributory negligence and that their representatives unduly caused the delays in bringing this matter to arbitration. It should not take more than six months for any organized institution to make the necessary arrangements to ensure that justice is done. In my view, it is a travesty when an employee is denied recourse to justice simply for logistical reasons that are not substantial by any stretch of the imagination.

The union contended that the evidence led at the disciplinary hearing had been ignored and that the necessary documentation had not been acquired. In my view, the evidence led during the arbitration on this allegation proved tenuous at best, and I have therefore not dealt with it in any detail in this award. Suffice to say that the EAP report that I subsequently received amounted to the same report produced as evidence of the company's efforts to assist the employee. It is debatable how much more the company should have done in these circumstances, but I am satisfied on a balance of probabilities that the company fulfilled both its negative and positive obligations towards the employee.

In regards to the issue of procedural fairness, it was common cause that annexure B had been signed by the parties with full knowledge that there were inconsistencies and the presiding officer had to be corrected. Whilst the union expressed concern over the bias of the presiding officer, no substantial evidence was led in this regard. I cannot therefore pronounce on this definitively. At the disciplinary hearing fair procedures had taken place and adequate opportunity had been given to the employee to state his case. I have therefore been given no substantial reason to doubt that the disciplinary hearing had been conducted in a fair manner.

In considering the appropriateness of the sanction, I had regard to the issue of consistency and the allegation that the company encouraged the employee's behaviour by not disciplining him appropriately. I do not agree that the company had assisted the employee to become more alcohol friendly or that it sent out a wrong signal that this conduct was acceptable, because it had not taken the necessary steps to dismiss him in previous matters. If anything, such leniency demonstrates that the company had valued the employee's work and that company representatives were reluctant to let him go. Although the company regarded the employee's record as an aggravating factor, it could not necessarily be interpreted as condoning the conduct of the employee. I also regard the fact that he seemingly took on a threatening attitude and swore at his supervisor whilst under the influence as aggravating factors. I am therefore satisfied that based on the evidence presented at the arbitration that the employee is in fact guilty of the charges against him and that the probabilities tend to favour the company. The employee was unable to provide a plausible and credible version on a balance of probabilities.

The employee's conduct during the arbitration presented itself to a favourable assessment and some measure of sympathy. I noted the level of cooperation showed by him and considered his personal circumstances. Further in mitigation, I considered the fact that the employee had long service with the company. He was married and had two young children. He was in arrears with debts and had no income to pay these debts. I am not unsympathetic of the employee's personal situation considered in this climate of high unemployment and general economic recession. However, I have weighed this up against his disposition, the fact that the company could not rely on his controlling his alcohol consumption, protecting the image and integrity of the company and the need to maintain minimum standards in building a culture of safety, security and good conduct in general. The fact that the employee had indeed committed the misconduct within the period of a written warning and to which he readily confessed and pleaded guilty (or at the very least did not dispute in any substantive way) certainly militates against this culture of safety, security and good conduct. I therefore regard his conduct, his implausible explanation and the fact that the employee does not have an unblemished record with valid warnings for similar offences, as aggravating factors. Indeed, these factors weighed heavily in my deliberations and in my opinion justify the sanction imposed.

Award

I have considered the relevant factors in this matter and believe that a sanction of dismissal is indeed appropriate in the circumstances. The employee is found guilty as charged, and the sanction of dismissal is upheld.

Furthermore, I find the conduct of both the union and company, in causing undue delays in bringing this matter to arbitration, reprehensible. For its part in causing the delay, the company shall pay the employee such compensation as may be due to him from the date of his dismissal until the date of this award or 12 months whichever is the greater amount. Mr Moolman indicated that he was not averse to this type of award.

My determination is therefore as follows:

1 There was no procedural unfairness by the company in dismissing the employee.
2 The dismissal of the employee by the company was substantively fair in the circumstances.
3 I accordingly dismiss the employee without retrospective effect and award him full compensation for 12 months on the same terms and conditions as applied at the date dismissal including benefits for the reasons cited above.