Law protects workers who commit offences due to illness or disability

It is legally very dangerous for employers to discipline and fire employees who commit offences due to illness or disability. For example, an employee who uses alcohol or narcotics and becomes addicted is legally classified as being ill and is protected by law.

Furthermore, section 187 of the Labour Relations Act reads that, “A dismissal is automatically unfair if … the reason for the dismissal is … that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

In the case of Black Mountain vs CCMA and others the employee was dismissed for causing damage while drunk driving. The CCMA arbitrator overturned the dismissal. The employer applied to the Labour Court for the arbitrator’s decision to be reviewed.

These cases make it clear that, although employees can be dismissed for abusing sick leave, absence without permission and poor work performance, ill employees are strongly protected from unfair treatment aimed at their disabilities. Alcohol abuse, if caused by addiction, is seen as an illness in South African law.

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