Dagga: Whose problem is it really?
Employers are generally familiar with the problem of alcohol abuse in the workplace. They are less likely to observe employees arriving at work under the influence of dagga (cannabis) or other mind-altering drugs. Such instances seem to occur more and more frequently although they are more difficult to detect than alcohol abuse. In some instances employees are brazen enough to smoke or use the substance while at work, which is indeed what happened in the case of NACUSA obo Mabona LJ vs. Zodiac Pool Care South Africa as discussed below..
Abuse of alcohol or other drugs in the workplace normally amounts to a serious breach of a workplace rule with dismissal as a possible sanction. The challenge that employers face, however, is that alcohol and other drug abuse are regarded as forms of medical incapacity in terms of the relevant Code of Good Practice issued under the Labour Relations Act. The procedures for dealing with medical incapacity are different from those dealing with misconduct.
In the case of medical incapacity the employer should not hold a disciplinary hearing, but rather investigate the extent of the problem and consider alternatives to dismissal such as counselling and rehabilitation. In order to avoid falling foul on the procedural side, it is important to make the correct decision on what approach to adopt. This is not always easy.
In the above-mentioned Zodiac Pool case the employee, a forklift driver, was dismissed after being caught smoking dagga at work. The employee denied smoking the substance at work, but admitted to smoking dagga occasionally, saying that it happened “… maybe twice a week”. He knew that it was illegal. In mitigation he attributed the habit to loneliness. In view of :
- the illegality of the employee’s conduct
- the threat to the safety of others, and
- the employee’s denial and lack of remorse,
the employer felt that the employee could not be trusted.
The arbitrator accepted the employer’s version that the employee had been smoking dagga at work and found that the employer’s lack of trust in the employee was justified. According to the arbitrator the standards set by the employer were fair and had been consistently applied. The employer in fact wished to send a message to other employees that the smoking of dagga at work would not be tolerated. The employee's dismissal was therefore fair.
It is interesting to note that during his closing argument the employee said that he was willing to undergo treatment. Although the arbitrator did not comment, it seemed “too little too late”. It might have been a different matter altogether if, upon being caught, the employee had immediately admitted guilt and confessed a drug dependency. Although there might still be an element of misconduct, the employee would have had more reason to argue that the employer should have adhered to medical incapacity procedures.
This case confirms the principle that arbitrators will not interfere lightly with standards for conduct and behaviour determined by employers. Incidents amounting to the breach of rules should be treated as misconduct. If there is good reason to believe that the employee has a substance abuse problem, but is remorseful and seeks help, serious consideration should be given to dealing with the matter as a form of medical incapacity in terms of the relevant guidelines.
Written by Jan Truter of www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or email@example.com