Transnet Freight Rail v Transnet Bargaining Council and others (LC Case no.: C644/2009 Date of judgment: 4 March 2011)

Principle:

  1. When an employee who is not an alcoholic is under the influence of alcohol, she will be guilty of misconduct and not incapacity. Once an arbitrator finds that an employee is not an alcoholic, he/she is required to consider whether a finding of guilt is fair and whether the sanction applied by the employer is reasonable and justified in the circumstances. The commissioner must apply the law relating to misconduct and not incapacity.

  2. Previous expired warnings could be taken into account when they showed a consistently deplorable employment record. An employer is always entitled to look at the cumulative effect of the misconduct of an employee.

  3. The implication of being lenient in the application of an important rule is the message it sends to other employees regarding the infringement of the rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust.

Facts:

The employee was employed from 27 May 2002 until her dismissal on 29 May 2009. At the date of her dismissal, she was employed as a yard official which involves marshalling and coupling of trains, and is a safety critical position. Due to the nature of the work performed the offence of being under the influence of alcohol at work constitutes serious misconduct in terms of Transnet’s disciplinary code.

On 24 May 2009, being the date upon which she committed the misconduct resulting in her dismissal, the employee had a valid serious written warning for being under the influence of alcohol at work which had been issued on 28 May 2008 and was valid for twelve months.

At the arbitration hearing both the procedural and substantive fairness of her dismissal  were challenged on several grounds including that she had been not afforded rehabilitation in terms of its Employee Assistance Program (“EAP”).  The arbitrator held that the chairperson of the enquiry was well versed with employer’s EAP and the employee’s problems and could have recommended counselling as a form of action to address her misconduct. There was no evidence to suggest that employee could not be trusted or that her work had been affected and thereby caused an irretrievable breakdown in the relationship. For these and other reasons the arbitrator reinstated the employee and ordered her to submit to rehabilitation in terms of paragraph 12 of employer’s substance abuse policy and to comply with such policy.

On review, the Labour Court overturned the arbitrator’s decision and confirmed the employee’s dismissal as fair. The opening words of the judgment ask the question whether alcohol abuse should be treated as misconduct rather than incapacity. This is a problem many employers grapple with: an employee commits an alcohol related offence, but the Dismissal Code of Good Practice under the LRA provides that for alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps to consider. Does the employer go the incapacity route or the misconduct route? This case provides guidelines in this regard.

Although the employee in this case was subject to a valid serious written warning, the judgement also comments on the relevance of expired warnings. It states that an employer is always entitled to look at the cumulative effect of the misconduct of an employee.

Extract from the judgment:

17. Section 10 (3) of the Code of Good Practice: Dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by a company in assisting such employees. In fact, the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such. This has been accepted by the CCMA and bargaining councils. See, for example:

Jansen and Pressure Concepts (2005) 26 ILJ 2064 (BCA)
Naik v Telcom SA (2000) 21 ILJ 1266 (CCMA)
National Union Of Metal Workers Of SA on behalf of Williams and Roberson & Caine (Pty) Ltd (2005) 26 ILJ 2074 (BCA)

18. In this regard Grogan states the following in Workplace Law:

“Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation [Item 10(3)]...

It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence...

Special mention is made [in the Code of Good Conduct: Dismissal] of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct.  Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense, unless provision is made for them in a medical aid scheme.”

19. Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The purpose of placing such a duty on an employer is based on the current medical understanding of alcoholism – that it is a diagnosable and treatable disease. This disease results in the incapacity of the employee. 

20. In terms of how to deal with the employee, the distinguishing feature in such cases of alcoholism appears to be, as with all instances of incapacity, that the employee is not at fault for her behaviour – the employee cannot be blamed for their disease and its impact on their behaviour and discipline would be inappropriate in the circumstances.

21. I agree with Mr Cassels, however, that the category of misconduct for reporting for duty under the influence has not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit.

22. It is not necessary for me to consider how one is to determine whether an employee has alcoholism as it is common cause and a fact accepted by the Second Respondent that the Fourth Respondent is not an alcoholic and is not suffering from alcoholism.

Fairness of Dismissal for Misconduct: Under the Influence

23. Once a commissioner finds that an employee is not an alcoholic he/she is required to consider whether a finding of guilt is fair and whether the sanction applied by the employer is reasonable and justified in the circumstances. In order to do this the commissioner is required to continue to apply the law relating to misconduct and not that relating to incapacity.

The relevance of harm caused by or the potential for harm in cases involving alcohol related misconduct

24. Grogan, in discussing the case of Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) in which it was found that the employee, who was found to have been under the influence of alcohol, committed an offence justifying dismissal, notes the following:

“...[I]n Tanker Services (Pty) Ltd v Magudulela the employee was dismissed for being under the influence of alcohol while driving a 32-ton articulated vehicle belonging to the employer. The court held that an employee is 'under the influence of alcohol' if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. The evidence required to prove that a person has infringed a rule relating to consumption of alcohol or drugs depends on the offence with which the employee is charged. If employees are charged with being 'under the influence', evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyser tests...

Whether employees are unable to perform their work depends to some extent on its nature. In Tanker Services, the question was whether Mr Magudelela's faculties had been impaired to the extent that he could no longer perform the 'skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance'. Having found that he could not safely do so in his condition, the court concluded that Magudelela's amounted to an offence sufficiently serious to warrant dismissal.”

25. As to whether an employee, being caught before any serious incident occurs, should be treated more favourably than another who was not caught, the arbitrator in NUMSA obo Davids/Bosal Africa (Pty) Ltd [1999] 10 BALR 1240 (IMSSA) was of the opinion that the dismissal of a crane driver was justified despite the fact that he had operated the crane without mishap for some time before the level of alcohol in his bloodstream was discovered to be three times the legal limit for driving a vehicle.

26. This finding was confirmed by the Labour Court in Exactics-Pet (Pty) Ltd v Petalia NO & other (2006) 27 ILJ 1126 (LC) where Revelas J stated the following:

“In the arbitration of NUMSA obo Davids v Bosal Africa (Pty) Ltd [1999] 10 BALR 1240 (IMSSA), the union argued that, although its member had operated a heavy duty crane with alcohol in his bloodstream on the material date, his physical condition did not prevent him from performing properly since he had managed to operate the crane for approximately three hours before his condition was detected. In response to this strange submission the arbitrator, Dr Grogan, held as follows:

'However the plea that the moral culpability of a person who is drunk in charge of a vehicle or machinery is diminished because he failed to have an accident before being apprehended, is clearly preposterous. Were that defence to be upheld in traffic courts, the offence of driving under the influence of liquor would be rendered unenforceable, except when the accused had had an accident.'

The arbitrator's finding in the matter before me, is akin to stating that the ability of the fourth respondent to work for two hours without causing an accident, meant that either he was not drunk or that he should not be held liable for his state of intoxication. That is a logically unsustainable argument.”

27. Mr Cassels submitted that the ruling in Exactics-Pets should logically extend to situations where an employee reports for duty and fully intends to perform their job function but is prevented from doing so by a diligent employer. I agree. The fact that the employee was not allowed to work in his or her intoxicated state should not prevent or mitigate the employee’s liability for their state of intoxication. This is particularly relevant where, had the employee actually succeeded with their intention to perform their job function, their state would have made their job extremely dangerous, given the nature of their job function.

 Progressive discipline and factors to consider when determining whether dismissal is justified

28. With regard to sanction, Section 3 of Schedule 8 of The Code of Good Practice: Dismissal places an expectation on employers to use corrective and progressive discipline in dealing with the misconduct of employees. It is also trite that in certain circumstances dismissal for a first time offence may be appropriate where such offence is of a serious nature.

29. In Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) the Constitutional Court held that in assessing whether an employer's decision to dismiss is fair:

“A commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”

30.There may be other relevant factors to consider when determining whether dismissal is fair.

Edgars Consolidated Ltd (Edcon) v CCMA & others [2009] 1 BLLR 56 (LC) at paragraphs [18] and [19];
Woolworths (Pty) Ltd v CCMA & others [2008] 8 BLLR 812 (LC) at paras 10-15

31. I agree with the suggestion made by Mr Cassels that in cases involving misconduct for reporting for duty under the influence of alcohol a commissioner should, in determining the fairness of dismissal, consider and weigh against each other (based on the above), among other things:

  1. That the employee knew of the rule and was aware that breaching it could result in dismissal;
  2. That the employee wilfully committed the misconduct;
  3. The nature and responsibilities of the employee’s job function;
  4. The basis for the employee’s challenge to dismissal;
  5. The importance of the rule breached;
  6. The principles and necessary application of progressive discipline and the importance of consistency;
  7. The employee’s disciplinary record, including the presence or lack of any relevant valid warnings of final written warnings that may be in effect;
  8. The harm (or potential to bring harm) as a result of the misconduct.

Job function and the importance of the rule breached

32. The job function of the employee is relevant in determining the fairness of dismissal in cases dealing with being under the influence of alcohol. Where the job is highly skilled, responsible or hazardous or the offence is committed by a senior employee who should be beyond reproach, the courts have found that dismissal for a first offence is justified.

[Tanker Services, supra.]

33. It seems to me that in instances where the job function of an offending employee is such that misconduct of this nature would be extremely dangerous and could result in death, injury or damage, a strict application of the rule forbidding it must be applied. Strict application of such a rule is of importance to the company, its employees, and public policy. Commissioners, in weighing up the evidence before them, must have due regard for the importance of such a rule and its role in justifying the dismissal of an employee.

34. Schedule 8 of The Code of Good Practice: Dismissal specifically provides for instances where progressive discipline is simply inappropriate and dismissal for a first offence is justifiable. A number of cases have found that in certain circumstances misconduct relating to alcohol justifies dismissal.

[Tanker Services, supra.]

35. Clearly, the importance of the rule and the implications of its transgression must be an essential consideration in determining whether dismissal is justified. 

36. A further consideration ought to be the implications of being lenient in the application of an important rule and the message such lenience sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust. In this regard Conradie JA in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others (2000) 21 ILJ 1051 (LAC) stated the following:

“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society's moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer's enterprise.”

Application of a Valid Serious Final Written Warning for the Same Type of Misconduct

37. The Labour Appeal Court considered the relevance, application and purpose of final written warnings in National Union of Mineworkers & Another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 5 LLD 226 (LAC). That case involved an instance of collective misconduct. The employees who were party to the misconduct had varying levels of discipline on their file. Those already on final written warnings were dismissed. The other employees received a lesser sanction which was subsequently reduced by one level in terms of the company’s progressive disciplinary structure (e.g. an employee with a clean record was initially given a serious written warning with was later reduced to a warning). Those who had been dismissed did not have their sanctions reduced and the Honourable Court found that this was fair. In this regard the court was of the opinion that an argument that the sanction of dismissal should have also been reduced failed to consider the fact that the other employees had disciplinary records that allowed for a lesser sanction than that initially imposed. Their records did not constrain the employer to impose a particular punishment and nothing else. The employees already on a final written warning however left the employer with little choice but to dismiss them. If their dismissal had been reduced it would have been to a final written warning and there would have been no progression of discipline at all. The Labour Appeal Court was of the opinion that failure to impose the sanction of dismissal would mean that they were not punished for that offence and that further, the employee's offence was a fairly serious one and did not justify the extension of any final warning.

38. The implication of this finding, as discussed by Grogan  is that:

“...[A]n employee’s disciplinary record may be taken into account when considering whether the employee should be dismissed for a particular offence. This follows from the requirement that dismissal should be ‘progressive’. An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning.”

39. In terms of the relevance of valid written warnings the courts have accepted that the period of validity of a final written warning may differ depending on the gravity of the offence. This is consistent with the principles of progressive discipline.

CWIU & another v AECI Paints (Natal) (Pty) Ltd (1989) 10 ILJ 311 (IC)

40. Generally, a final written warning valid for 12 months serves as a clear and b communication to the employee that their conduct in this regard is extremely serious and will not be tolerated by the employer. 

41. Usually, the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee to usually be considered irredeemable. 

42. Even in circumstances where a final written warning or a string of warnings have expired, a sanction of dismissal may still be justified. In this regard Nicholson AJ in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) stated the following:

“Even in the absence of a valid final written warning an employer is entitled to dismiss an employee in appropriate circumstances. It must also be recalled that there was in existence a written warning dating from March the previous year with a 12-month duration. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings. An employee's duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances.

...

I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal. That seems to be the purpose of the warning issued in October to the appellant. I am of the view that an employer is always entitled to look at the cumulative effect of the misconduct of the employee.”

Negligence, Under the Influence and Misconduct

43. Negligence can be defined as “a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person.”

44. As is obvious from that definition, there is sometimes an overlap between poor work performance and negligence. Negligence can be treated as either incapacity or as misconduct, depending on the circumstances. The basis for culpability in negligence cases is the lack of care and/or diligence accompanying the act or omission. The test for negligence is an objective one, namely whether the harm (or potential harm) was foreseeable and whether a reasonable person would have guarded against its occurring.

Grogan, Workplace Law, pages 122 - 123
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck (2007) 28 ILJ 307
(SCA) Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-H

45. Negligence does not extend to acts where an individual, knowing full well the probability of the consequences of their actions and the dangers in their behaviour, deliberately and wilfully chooses to behave in such a manner regardless of the consequences.