SALSTAFF/AIWU on behalf of Govender and SA Airways (2001) 22 ILJ 2366 (ARB)
Dismissal may be justified where an employee fails to disclose at the application stage for a job a history of drug dependency.
The employee, a cabin attendant employed by SAA, was dismissed for gross dishonesty for his failure to disclose his earlier dependence on cocaine during a medical examination and for absconding from a clinic to which the employer had referred him for treatment for his drug dependency. The arbitrator found that the employee had admitted to a drug dependency which pre-dated his application for employment and therefore his denial during the medical examination was false. The arbitrator found that the employee's failure to disclose a drug dependency problem was a material non-disclosure. Had he revealed his history of drug dependency, he would not have been employed or licenced as a cabin attendant. The arbitrator held that the dismissal was justified.
Extract from the judgment:
4. Mr Govender was required, as part of the medical examination, to provide a medical history in the form of answers to a number of questions set out in a prescribed form. One of the questions was whether he had in the past misused drugs or other substances. He answered 'no'. There is a footnote at the bottom of the form which states that a person who makes a false statement shall be guilty of an offence.
5. It is common cause that Mr Govender had during March 1999, of his own volition, reported to his employer that he had a drug dependency problem and had asked for assistance. SAA then referred him to the Elim Clinic, an establishment that specialises in drug rehabilitation, for treatment. He was admitted to the clinic on 13 March 1999. However, Mr Govender absconded from the clinic on 26 March 1999. He applied for readmission, but it was refused at that stage.
6. He returned to work in April and recommenced flying during the second half of the month. According to a note in Mr Govender's personnel file, dated 14 April 1999, Dr E B Peters of SAA Medical Services had declared him fit to fly. Dr Peters, however, in his testimony denied that he had done so, and said that it must have been a nurse who had made the entry without his authorization. He said that he himself did not even have authority to have declared Mr Govender fit for flying. Such a decision had to be taken by a panel of SAA Medical Services. It is, however, common cause that Mr Govender had tested negative for drugs on 13 April 1999, shortly after his return from Elim.
7. Mr Govender denied that the statement on the medical examination form had been false. He said at the time he had made the statement, he had not yet used drugs. He said that he had used crack for the first time during July 1998, after the medical examination. He said that he had experienced difficulty to come to terms with the death of his brother in a hijacking incident during March of that year, and started using crack in July, after he had been introduced to it at a party. His use of the drug gradually increased, until he realized during March 1999 that it had gone out of control. He then sought help from the Employee Well-being Programme of SAA.
8. However, a report by Mrs S van Niekerk, a therapist at the Elim Clinic, came to the attention of the SAA, according to which Mr Govender had told Mrs van Niekerk that he had started using crack for the first time during 1995, and that he had received treatment for addiction three months later. She further reported that he had apparently stayed clean until July 1998, when he slowly relapsed into his old ways.
9. Mr Govender denied that he had told Mrs van Niekerk that he had started using crack in 1995. He said he had told her that he had started using alcohol in 1995 and had developed an alcohol dependency problem. Mrs van Niekerk was called to testify. She confirmed that Mr Govender had told her that he had started using crack in 1995. She said that it is of vital importance to establish the history of a patient's previous use of drugs and other substances before commencing the rehabilitation programme. She said that it was impossible that she could have made a mistake in this regard as the history of drug dependency is the single most important factor in determining the most appropriate treatment.
10. Mrs van Niekerk testified regarding a questionnaire that Mr Govender had filled in upon his admittance to Elim Clinic, in which he stated that the crack problem had become problematic in 'July last year', ie 1998. Mr Loubser argued that this contradicted Mrs van Niekerk's evidence that he had told her that he had started using crack on 1995. On Mrs van Niekerk's evidence, however, it is not she who had contradicted herself, but Mr Govender.
11. Mr Loubser further argued that Mrs van Niekerk was probably mistaken as there were also other persons present during the session when Mr Govender had allegedly told her that he had started using crack during 1995.
12. I have no hesitation in accepting the evidence of Mrs van Niekerk. She has no axe to grind. I also exclude the possibility of a mistake. A mistake of that nature could only be the result of utter incompetence and/or negligence. After listening to the evidence of Mrs van Niekerk, this is not the impression I gained. She struck me as an intelligent, compassionate and dedicated professional.
13. I therefore find, on a balance of probabilities, that Mr Govender had admitted to earlier drug dependency and that his denial thereof during the medical examination was false.
14. Mr Govender was also charged with having absconded from Elim. He explained that the reason for his leaving the clinic was that it had been discovered during his stay that his girlfriend had fallen pregnant. That was a serious problem to him and he had to deal with that situation. He said he had intended to continue his rehabilitation through alternative treatment. He was indeed subsequently treated by a psychiatrist, Dr J Kolloori.
15. It must be remembered that Mr Govender's admission to Elim had been voluntary. Mr Loubser argued that it could not constitute misconduct for a person to abscond from an institution to which he had voluntarily been admitted. It must, however, be borne in mind that his treatment had been sponsored by SAA. Mr Govender had abused the privilege bestowed on him by his employer. The SAA had made an investment in his recovery and could expect of him to complete the course. This charge is, however, not the gravamen of the case. In view of my finding on the main charge, I need not decide whether this charge, on its own, justifies dismissal.