Hugo Pienaar and Elizabeth Sonnekus
One would think that if an employee is found to be under the influence of alcohol at work it was a straightforward dismissible offence. Recent case law, however, shows that this is not necessarily so. Employers often operate under the mistaken belief that testing positive for alcohol means that the employee is under the influence of alcohol.
Alcohol and drug abuse is a form of misconduct. Schedule 8: Code of Good Practice of the Labour Relations Act, 1995 (Act 66 of 1995 [LRA]) recognises misconduct by an employee as a fair reason for dismissal.
There are two scenarios in which employees may be charged for their use of alcohol at the workplace:
The first scenario is where the employee’s drunkenness can be proven by sight, smell and/or his or her conduct. Factors showing drunkenness include aggressive behaviour by the employee, slurred speech and bloodshot eyes. The degree of drunkenness has to be such that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes.
The second scenario is where an employee tests positive for alcohol on a breathalyser. Testing positive does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired. Employers often mistakenly believe that a positive test result is sufficient proof that the employee is under the influence of alcohol and then wrongfully charge the employee with being under the influence of alcohol. Recent case law confirms that a positive test result is not necessarily sufficient to dismiss an employee.
In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC) the Labour Court found that a positive test result on a breathalyser is not sufficient proof that the employee was under the influence of alcohol. The court referred to Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC), which stated that the real test is whether the employee’s competence to perform his or her work has been impaired. In this case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.
What should an employer do?
- The employer should adopt zero tolerance in terms of its alcohol policy for the workplace. Such policy should be specific and also provide for a summary dismissal, even if the employee merely tests positive for the use of alcohol or drugs. The rationale for such policy should be based on the safety considerations of the employer. This means that an employee may be summarily dismissed irrespective of whether his or her ability to work is impaired or not. The adoption of such a policy depends on its status and may sometimes simply require consulting with the employees before the implementation of such a policy. The employer should always ensure that all employees are aware that there is a zero tolerance policy and that if they test positive for any use of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.
- In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly. The test should also always be done in the presence of a witness.
- However, where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work is impaired ─ if that was indeed the case.
- If it emerges that an employee has an alcohol dependency the employer has an obligation to consider providing counselling and to assist the employee as set out in item 10 of Schedule 8 of the LRA.
Source: Cliffe Dekker Hofmeyr