Author: Scott Thomas
On the 30th September 2025, the Labour Court overturned an employee’s dismissal for unauthorised absenteeism, finding that the employer and arbitrator had incorrectly treated the matter as misconduct rather than incapacity arising from alcoholism. By contrast, in a 2011 case where an employee reported for duty under the influence of alcohol, the Labour Court upheld the dismissal.
At first glance, both cases involved alcohol-related conduct, yet the outcomes were very different. The explanation lies in the critical legal distinction between misconduct and incapacity.
The code of good practice
Dismissal recognises alcoholism as a form of incapacity. Incapacity arises where an employee is unable to perform their duties due to a medical condition and requires support, counselling, or rehabilitation rather than punishment. Misconduct, on the other hand, involves the wilful breach of workplace rules, such as arriving at work intoxicated without claiming incapacity. The decisive issue is therefore not alcohol use itself, but the underlying cause of the behaviour.
In the 2025 case (Department of Social Development: WC v PSA obo Van Wyk), the employee’s absenteeism was linked to alcohol dependency, major depressive disorder, and serious physical illness. Medical evidence showed a lack of fault rather than deliberate misconduct, and the employee sought rehabilitation. The Court held that incapacity procedures should have been followed, not disciplinary action.
In contrast, in the 2011 case (Transnet Freight Rail v SATAWU & Louw), the employee was not alcohol-dependent. Her intoxication was attributed to personal difficulties, with no supporting medical evidence. The conduct was therefore voluntary, constituting misconduct, and dismissal was upheld.
These cases show that employers must look beyond the conduct itself and assess why it occurred. Before disciplining alcohol-related behaviour, employers should consider whether dependency or another medical condition may be present. This requires engagement with the employee, obtaining medical information where appropriate, and considering rehabilitation. Disciplinary action is only appropriate once incapacity has been excluded.
Employers who default to discipline without this assessment risk having dismissals overturned by the Labour Court.
Alcohol-related workplace issues are rarely straightforward. The real risk lies not in taking action, but in taking the wrong action too soon.
A common and understandable question from employers is: how am I supposed to know whether there is an underlying condition such as alcoholism? Unlike intoxication, there is no single test that an employer can rely on to determine dependency.
The assessment is therefore not clinical, but contextual. Employers must look at the employee’s history and disclosures, rather than attempting to diagnose the condition themselves. If an employee categorically denies having a drinking problem, and there is no prior indication of dependency, employers are generally entitled to take that at face value and treat the conduct as misconduct. The law does not require employers to assume incapacity where none has been raised or supported by evidence.
However, the position changes where there is existing knowledge or indication of alcohol dependency. This may include prior admissions by the employee, a known history of rehabilitation, medical records, repeated alcohol-related incidents, or disclosures made during the disciplinary process. In such circumstances, employers cannot ignore this information. Once dependency is apparent or raised, the employer is required to pause disciplinary action and consider whether the matter should be managed as incapacity.
The obligation on employers is therefore not to diagnose alcoholism, but to apply their minds to the information available to them. Where dependency is reasonably apparent, fairness requires a shift away from punishment towards support, assessment, and rehabilitation. Where it is not, misconduct procedures remain appropriate.
At HRTorQue, we can help you correctly assess alcohol-related conduct at the outset, distinguishing between misconduct and incapacity, identifying what information is required, and guiding the appropriate legal process. By ensuring the right approach from the start, we help employers reduce legal risk while promoting fair and defensible outcomes. Contact us for more information.