July 18, 2017

Protecting “the little guy”: SA Labour Law

South African labour law is an example of legislation that is all encompassing and one that protects the ‘little guy’. While this is a positive attribute it occasionally goes too far and makes life impossible for an employer. For example, there is a strict procedure that must be undertaken when dismissing an alcoholic employee.

If an employee drinks or is intoxicated on the job, it is a form of misconduct and can lead to dismissal. Should an employer wish to follow this course of action he or she would be required to undertake the normal procedure in order to dismiss the employee. However, the situation changes when employees claim that they are alcoholics and request assistance. A completely new procedure must then be followed.

To begin with, the employee would need to prove that he or she is in fact an alcoholic. An employee who is intoxicated after the weekend or has a beer with lunch would not be considered an alcoholic – there needs to be a form of reliance on the alcohol. Once this has been established, the charge will be changed from one of misconduct to incapacity, as alcoholism is considered a disease. Employers may not dismiss an employee who suffers from a disease as doing so is considered to be discrimination.

The employer is then required to take all reasonable steps to assist the employee in overcoming his or her disease. This can include allowing the employee extended leave in order to complete a rehabilitation program. What is reasonable will be an objective view based on what a reasonable employer would do. For example, if the employee has already been to rehab and the employer has already given him or her the opportunity to correct his behaviour, all reasonable steps would have been taken by the employer and he or she would then be entitled to take disciplinary action against the employee.

Once an employer has taken all reasonable steps, he or she would need to follow the normal disciplinary procedure to take action against the employee. He or she would further need to include evidence of all the steps taken to attempt to assist the employee to overcome the illness.

Author: James Bush

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