Understanding the Legal Distinction

Substance abuse in the workplace remains one of the most complex challenges facing employers in South Africa. Beyond its operational impact, it raises a crucial legal question, should substance dependence be managed as misconduct or as incapacity?

The distinction is not merely academic. It determines whether an employer is justified in taking disciplinary action or whether the matter requires a compassionate and medically informed incapacity process under South African labour law.

Substance Use vs. Substance Dependence

Ordinarily, when an employee uses or possesses drugs or alcohol at work, this constitutes misconduct and may warrant disciplinary action. However, where an employee suffers from substance dependence, the situation changes entirely. Dependence is recognised as a medical condition, a diagnosable and treatable illness and must therefore be addressed under the principles of incapacity due to ill health, rather than through punitive measures.

Alcoholism, in particular, has long been acknowledged by medical and legal authorities as a disease that can impair judgment, attendance, and performance. It follows that dismissing an employee for conduct resulting from such dependency, without a proper medical incapacity process, can render the dismissal unfair.

The recent Labour Court case of PSA obo Randolph van Wyk v Department of Social Development: Western Cape Provincial Government and Others (reaffirmed this position.

In this case, the employee was dismissed for unauthorised absenteeism following repeated absences from work. Evidence before the court showed that the absences were the direct result of alcohol dependency and related mental health conditions, supported by medical reports, counselling records, and rehabilitation admissions.

The employer proceeded with a disciplinary hearing for misconduct rather than an incapacity enquiry, disregarding the underlying medical condition. Although the CCMA arbitrator initially upheld the dismissal, the Labour Court set this aside — ruling that both the procedure and outcome were unfair.

Why the Difference Matters

The Code of Good Practice: Dismissal, issued in terms of the Labour Relations Act, provides separate guidelines for dealing with misconduct and incapacity.

Where the root cause of poor performance or absenteeism is substance dependency, the Code places a heavier duty on employers. Before dismissing an employee, the employer must consider:

• Whether the employee has been offered counselling or rehabilitation;
• Whether reasonable accommodation was explored; and
• Whether the employee’s condition has been medically evaluated.

The Labour Court in PSA relied on the earlier decision in Transnet Freight Rail v Transnet Bargaining Council and Others (, where it was emphasised that alcoholism is a recognised disease. The Court held that fault cannot be ascribed to the employee where their behaviour stems from a diagnosed medical incapacity rather than deliberate misconduct.

The Court’s Findings

The Labour Court concluded that:

• The employee’s dismissal was both procedurally and substantively unfair;
• The employer failed to follow the required incapacity procedures; and
• The employee was entitled to reinstatement. This judgment reinforces the principle that employers cannot simply discipline employees for symptoms of a disease. Instead, they must address the medical and rehabilitative dimensions of the problem.

Employers must adopt a balanced and legally compliant approach when dealing with substance dependency. Key steps include:

• Identify and document signs of possible dependency early.
• Engage empathetically, refer the employee for medical evaluation or counselling.
• Initiate an incapacity process, not a disciplinary enquiry.
• Offer support, such as Employee Assistance Programmes or rehabilitation leave.
• Consult medical professionals before making employment decisions.

Taking these steps ensures compliance with the Labour Relations Act, the Code of Good Practice, and evolving case law such as PSA.

A Shift Toward Compassionate Compliance

The message from the courts is clear: dependency is not defiance. Employers must recognise substance dependence as a medical issue requiring intervention, not punishment. By doing so, organisations not only comply with the law but also promote a healthier, safer, and more supportive workplace culture.

How Mayet & Associates Can Help

At Mayet & Associates Attorneys, we assist employers in navigating complex labour and employment matters, including:

• Drafting and implementing substance abuse policies;
• Managing incapacity and rehabilitation processes;
• Representing employers or employees in CCMA and Labour Court disputes; and
• Providing training and compliance workshops aligned with the Labour Relations Act.

If your organisation is facing challenges related to employee substance dependency, contact our employment law team for practical, lawful, and compassionate solutions.