Almost every employer has had to deal with one of the following situations:
- An employee reports for duty while under the under the influence of liquor of drugs.
- An employee consumed alcohol while on duty.
- An employee reports for duty while the exceeding the allowed limit of alcohol in his bloodstream.
This conduct constitutes misconduct and employers need to deal with this in an appropriate manner.
What’s the employer’s duty when this happens?
In terms of the Operational Health & Safety Act (OHS) General Safety Regulations, there is a duty on the employer to ensure that employees:
- Who appear under the influence of liquor/drugs are not allowed to enter or remain in the workplace or to work.
- Are not to be under the influence at the workplace.
- Are not allowed to have alcohol in their possession at the workplace.
- Do not offer alcohol to other employees in the workplace.
The matter of proof
When faced with this situation, what must you prove and how must you prove it?
The evidence required to prove that an employee has reported for duty after consuming alcohol or drugs will depend on the offence with which the employee is charged.
If the employee is charged with “under the influence of alcohol” or “reporting for duty while under the influence of alcohol”, the employer has to prove that the employee was intoxicated to such a degree that his/her faculties was so impaired that he/she was not able to perform his/her normal duties. The employer must not only prove that there was alcohol in the employee’s bloodstream, but that the employee was thereby rendered incapable of working properly.
The mere presence of alcohol in the employee’s bloodstream does not necessarily prove that an employee is intoxicated and that this disqualify him from performing his duties or mean he is unable to perform his duties.
The question that must be asked is whether the employee’s faculties were so impaired to the extent that he/she could no longer perform the skilled, technically complex and highly responsible duties expected from him.
Employees may be charged with reporting for duty while the alcohol content in their system exceeds a specific limit because this may constitute misconduct, under certain circumstances in terms of the employer’s “zero tolerance” policy. Such policies may, in certain circumstances, be necessary and justified. The employer must prove that the employee exceeded the limit and that the policy is valid, reasonable and justified. The employer will also have to prove that the employee had knowledge of the strict approach and the consequences of contravening the policy.
Proof of intoxication: test results or observation
Testing of Employees (Test Results)
There are various test apparatus/methods that can be utilised to ascertain if an employee is intoxicated, which may give a general or specific test result/reading. The employer will, if required, have to lead specific evidence (even expert evidence if required) regarding these tests and the application thereof.
Breathalyzer:
- Evidence to show that the test apparatus used was approved and gave reliable test results;
- Evidence that the test was performed by an employee or person properly trained to do so and that proper procedures were followed.
Blood Tests:
- Evidence that the tests were conducted by or under the supervision of a suitably medically trained person and that proper procedures were followed.
It is always advisable that the prior consent of the employee is obtained before conducting the above tests. This consent can be obtained prior to the test itself or can be given in for example the employee’s contract of employment, when he/she commences employment or in a signed policy. Consent should always be given and recorded in writing.
Tests should also always be conducted in the presence of witnesses to corroborate any of the aspects that the employer needs to prove. The employee is also allowed to have his own representative present at such testing if he/she wishes.
The requirement to undergo a test can be random or compulsory, depending on the circumstances of the employer and any refusal by an employee to undergo a test may be considered as aggravating factors, as the employee is offered the opportunity to prove innocence and refuses to do so.
Should the charge against the employee or specific policy refer to a specific level or test reading, the employer would have to prove at least that specific level.
Observations or Sobriety test
Where breathalyser or blood test results are not specifically required, the employer may also make use of observations or field sobriety tests.
Observations:
An employee’s intoxication can be proven by observation made of the employee while on duty or when reporting for duty. This can be done by visual observations of the employee’s general appearance, attitude or behaviour (dishevelled/untidy, bloodshot eyes, aggressive or belligerent behaviour, slurred speech, etc.) or smell (employee smells of liquor).
The employer will not be required to present expert witnesses in this regard, but there should be proper evidence lead in this regard. Preferably there should be witnesses to corroborate observations and even an “observation report” on which these observations are recorded, which is signed and witnessed.
Field Sobriety Tests:
These tests can be done by the manager and should preferably also be done in the presence of a witness and recorded.
Horizontal Gaze Test: Following an object (pen) with eyes to determine eye movement reaction.
Walk-and-turn Test: Walk heel-to-toe in straight line. Determines abilities to follow instructions and dividing attention between mental and physical tasks.
One-leg-Stand
Modified-position of attention: Feet together, head back, eyes closed for 30 seconds.
Finger-to-nose test: Head back, eyes closed, touch tip of nose with tip of index finger.
Finger touch & count test: Touch each finger of the hand with thumb while counting every touch.
Counting Backwards from 30/100.
Video Recording:
If at all possilble we advise that you make a video recording of the test procedure. Cellphone recordings will be sufficient and are more readally available.