When dealing with intoxicated employees, employers need to determine whether an employee is:
- under the influence of alcohol;
- drunk/intoxicated; or
- merely smelling like alcohol.
The charges drafted must be drafted accordingly.
What happens if an employee is under the influence of alcohol?
When an employee is charged with being under the influence of alcohol there must be efficient evidence to support this. It must be proven that the employee was unable to perform the tasks that were entrusted to them or with the skill of a sober person. Their faculties must be impaired.
What must the employer do?
This can be done by means of administering their blood or doing a breathalyzer test together with a visual observation test in the presence of at least 2 witnesses. Visual observation regarding an employee that may be possibly under the influence of alcohol is sufficient proof for disciplinary action. Examples of visual observations the employer must make include: whether the employee has bloodshot eyes; is aggressive; has slurred speech; is incapable of walking straight; etc.
Proving alcohol in the system is not enough
In Mokgathle /Xstrata South Africa Pty Ltd (Merafe Boshoek Works) (2011) a breathalyzer test was done on an employee and the test results indicated that the alcohol content was initially 0,028% and 38 minutes later it was 0,015. The employee worked in a high-risk area as a cleaner and had already received a final written warning for the same offence. The employee was dismissed.
The employee testified that he consumed alcohol the day prior to the day he went for the breathalyzer test and that he was fit to conduct his duties and therefore he pleaded guilty during the hearing but only to the extent that he smelled like alcohol.
The commissioner held that to prove an employee is under the influence of alcohol it must be shown that there was an impairment of the employee’s faculties. The commissioner further held that a breathalyzer test is not definite and that where tests show a low margin of alcohol in the blood it is required to substantiate the intoxication with corroboratory evidence such as a manner of speech, bloodshot eyes and unsteadiness, etc. The employer failed to do this and the charge should have been “arriving/reporting for duty with more than 0% alcohol in your blood.”
The dismissal was found to be substantively unfair and reinstatement was ordered.
The employer’s defense: A Zero Tolerance Policy
The employer is, however, entitled to implement a Zero Tolerance Policy in the workplace against reporting for duty with alcohol in the employee’s system. The employer must further ensure that employees are aware of such policy and the policy must also stipulate the test procedure and the possible sanction. If the employee contravenes this rule the charge should be “failing to comply with company policies and procedures.”
The employer must prove that the Zero Tolerance Policy is a valid policy in light of the type of work being performed. For example, such a policy would differ for a transport business and a gardening service business.
Doing it right: how to implement a Zero Tolerance Policy
If an employer wishes to rely on a Zero Tolerance Policy in order to justify a dismissal, the policy will have to meet the following requirements:
- Whether the Zero Tolerance Policy was justified in the circumstances of each case.
- Was the policy properly communicated to all employees and were they aware of the fact that the rule is ‘absolute’.
- Was there an operational need for such a policy.
- The designation of an infringement of the declaration policy as a Zero Tolerance offence must square with the employer’s Disciplinary Code, which provides that such infringement will result in dismissal.
- Despite the breach of the rule, mitigating factors submitted by the employee must be considered.
To conclude, it is clear that in order to charge an employee with arriving for work under the influence of alcohol the employee must be incapable of performing their duties entrusted to them and not just merely smelling like alcohol and have breathalyzer tests results which shows more than 0%. The employer may however implement a Zero Tolerance Policy against any alcohol in the system, provided that it is justifiable. Not all employers will be able to use this as a justification for introducing a Zero Tolerance Policy towards the presence of alcohol in an employee’s system. It must be essential in relation to the business need and equally in terms of the sanction of dismissal it must be equally justifiable.
ABOUT THE AUTHOR
Nicole Sauls obtained her B.Com Law degree from the University of Western Cape in 2006 and her LLB degree from UNISA in 2014. She joined SEESA Labour in 2014.