Your guide to labour law in South Africa
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Drunkenness on duty Click on title to open Alcoholism and the workplace: Part 1 Employees arriving at work with alcohol smelling on the breath, employees consuming alcohol during working hours, employees missing days (or even weeks) at work without justification, or with lame and feeble excuses (but never a medical certificate, or perhaps even with a medical certificate every time) and employees slipping out during lunch break “for a quick one” – all this seems to be a problem which is on the increase – with a resulting increase in problems for the employer. The problem is not restricted only to alcohol – it extends to any substance having a narcotic producing effect. Lets analyze this problem – what is the adverse impact for both employer and employee ? Firstly, this type of behaviour constitutes misconduct – and I trust that all employers have a company policy in place, that has been communicated to all employees, regulating the consumption of alcohol on company premises, and also off company premises, where it might impact adversely on the employer, the employee, or the employee’s ability to perform his/her duties. If the employer has no such company policy in place, then that employer has a problem, namely that he cannot take disciplinary action against an employee for breaking a rule that does not exist. O.K – we accept that not every rule has to be reduced to writing, on the basis that some rules are so well known that they do not have to be put in writing. But it will greatly complicate matters if there are no such rules in the workplace, and it will make for much smoother sailing if the rules are in place. So let’s just accept and apply the principle that “if it is forbidden, then put it in writing.” To be accused of “having presented for work after having consumed alcohol (or a substance having a narcotic producing affect), or with alcohol smelling on the breath”, the employee does not necessarily have to be plainly intoxicated. He need not necessarily have had to have consumed a sufficient quantity of alcohol so as to have placed him “over the legal limit” – currently 0,5%. Being an act of misconduct, it is obvious that dismissal may result if the employee is found guilty after the employer has followed a fair procedure. Thus it is a serious matter. It would be sufficient for the employee to be in that situation where his abilities have been impaired, where his sense of judgment and reactions or other faculties have been affected, or where there is a visible affect on his behaviour that would not normally be the case if he were sober. So it is not merely the smell of alcohol on the breath of the employee that is the deciding factor – there are the other factors mentioned above that must also be taken into account. The degree of drunkenness must be tested and employers are permitted to ask the employee to submit to a breathalyzer test, or to a blood test. Obviously the blood test can only be done under the supervison of or by a suitably medically qualified person, A refusal by the employee to undergo any such tests would be seen as an aggravating factor, because the employee is in fact being offered an opportunity to prove his/her innocence. The breathalyzer test can be carried out by the employer, on the company premises, by a person who has been trained in the proper use of the instrument. The employee’s consent to undergo either test must be obtained in writing, and the employee is entitled to have a representative present to witness the procedure. The employer should also have another person present to witness the procedure on behalf of the employer. In addition to the test, the employer must make a note of the employee’s general appearance (is he/she untidy, disheveled, etc ) general attitude (aggressive, abusive, confrontational) are the eyes bloodshot, is the speech slurred, is the employee unsteady on his/her feet (carry out the “white line test”) and so on. All these observations must be reduced to writing and signed both by the observer and the observer’s witness. The establishment of a blood-alcohol content that is above the legal limit is not, in itself, sufficient evidence to dismiss the employee. The other factors must be established, as well as whether or not the employee is able or unable to perform his or her tasks to the required standard, and the level of danger to life and limb or the employer’s property should the employee be allowed to continue working, as well as the affect on the rest of the employees should this employee be allowed to continue working in an “imbibed” state. More on this subject next week. Derek Jackson can be contacted on advice@labourguide.co.za,
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