Manuel, an employee, is dismissed for being drunk on duty. Bennet, the manager, tells you that this is not the first time that Manuel has been drunk on duty. On at least 3 occasions in the past 3 months they have found him passed out at his desk – too drunk to move. He was given disciplinary warnings on all three occasions. Bennet says this is the ‘last straw’ and he does not want Manuel back.

What Does the Law Say?

• If the employee often gets drunk and cannot do the job, then the employee might be suffering from alcoholism. Alcoholism is a sickness so if an employee is an alcoholic, then being drunk on duty is not misconduct but rather incapacity (in other words, the employee is incapable of doing the job properly).

• Alcoholism is recognised as an illness in terms of the Unemployment Insurance Act. This Act provides benefits for alcoholics who are unable to work because of their illness, as long as they agree to undergo treatment.
• Before dismissing the employee for incapacity, the employer must counsel the employee and assist him or her with getting medical treatment if necessary.
• Only if the employee’s condition does not improve or the employee’s ability to do the job properly does not improve, should the employer think of dismissing him or her.
• The employer must still be able to prove that there was a fair reason and a fair hearing before the employee is dismissed.

(See: When is a Dismissal Fair or Unfair?)

What Can You Do?

• Find out from Manuel whether it is true that he has been given warnings for being drunk on duty.
• Find out whether he received any counselling for ‘persistent alcoholic tendencies’.
• Did Manuel have a hearing before being dismissed?
• If there was no counselling and no hearing before being dismissed and the employer refuses to take Manuel back, then you should declare a dispute with the employer. Follow the normal steps for reinstatement to get his job back for him.

(See: Problem 4: Dismissed employee wants the job back – how to apply for reinstatement or compensation)