Discipline and Dismissal




Employers are faced with this problem on a regular basis. Abuse of alcohol or drugs on the workplace while on duty, the consumption of alcohol or drugs before coming on duty, with all sorts of excuses such as " it is from the night before" or "it is cough mixture."Employees sometimes " nip out for a quick one" during their meal break, or field sales staff "have a few" while entertaining clients to lunch.  There is any amount of case law on dismissals for this type of offence, in its varying forms.



The important thing that comes out of the case law is the Employer's Policy on Alcohol and Drug Consumption on or off the Workplace. The policy should be clear – firstly, zero tolerance. Do not allow for limits in your policy. Secondly, the policy must stipulate your test procedure. For example, a breathalyser test for alcohol will be required - or a urine test for drugs. The policy must state that note will be taken of circumstantial evidence, such as bloodshot eyes, slurred speech, the smell of alcohol on the breath, unsteadiness on his feet, dishevelled appearance, aggressive or abusive or arrogant or out of character behaviour, and the inability to walk a 10 metre straight line with the arms held out horizontally.



There should be a proper " test sheet" on which the above items are listed, together with space for the comments of the person conducting the test. There should be a witness present for the employer and a witness present for the employee to ensure fairness of the procedure.The employer's rules regarding alcohol or drug consumption whilst on duty, or off duty before coming to work, must be very specific and must warn employees that should the rural be contravened, disciplinary action will follow which may result in dismissal. The policy must also make mention of the regulations in the Occupational Health and Safety Act regarding this Issue.



In SACCAWU obo Ntonga & another / A1 Fisheries [1999] 8 BALR 943 (CCMA) it was found unnecessary for the employer to prove how much alcohol had been consumed - only that liquor had been consumed.



In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance on the grounds that he did not have a drinking problem, and his dismissal was therefore found to be fair even on a first offence and withy a clean disciplinary record. It was stated that if an employee denies that he has a drinking problem and refuses assistance, then it is simply treated as a misconduct.



In SACCAWU obo Mfengwane v Bonus [1998] 5 BALR 595 (CCMA), it was also ruled that when an employee denies that he has a substance dependence problem, counselling is unnecessary - the matter is treated as a misconduct in terms of the employer's policy.



In SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA) matters took a different twist. The employee was dismissed on several charges of being under the influence of alcohol on duty.

The employee denied that he had been under the influence or that he had endangered passengers. During the hearing it was revealed that the employee regularly worked shifts of 18 hours without a break.

The arbitrator found that under normal circumstances, dismissal in this case would have been justified.



However, the arbitrator found that the conditions in which the grievant had worked were not normal, and that the working hours required of him did not allow for any recreational time. In fact, his life consisted of working and sleeping.It was ruled that rather than dismissal, the employer should have addressed the root of the problem and should have changed the employee's working hours.



The employee was accordingly reinstated in employment retrospectively. This shows that employers must err on the side of caution and should conduct a proper and full investigation to establish amongst other things, the causes of the substance abuse problem.

 

Subscribe to our free newsletter

* indicates required
 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Upcoming Courses

 

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management (Legal Liability) 

28 July 2022 (08:30 - 16:00)

Interactive Online Course

29 July 2022 (08:30 – 16:00)

Emperors Palace: Convention Centre 

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

29 July 2022 (08:30 - 12:30)

Interactive Online Course 

 

August

New Code of Good Practice: Harassment in the Workplace New Course

04 August 2022 (09:00 - 12:00)

Interactive Online Course

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

12 August 2022 (09:00 - 15:30)

Cape Town: Protea Hotel Tyger Valley

The formulation of disciplinary charges Online Course

12 August 2022 (09:00 - 12:00)

Interactive Online Course

Chairing Disciplinary Hearings

18 & 19 August 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 August 2022 (08:30 - 16:00)

Interactive Online Course

Shop Steward Training

19 August 2022 (09:00 - 16:00)

Interactive Online Course 

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

25 August 2022 (09:00 - 13:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

26 August 2022 (08:30 - 16:00)

Interactive Online Course

 

September

Retrenchments Simplified

02 September 2022 (09:00 - 12:00)

Interactive Online Course

Introduction to Mediation New Course

08 September 2022 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

09 September 2022 (09:00 - 16:00)

Cape Town: Protea Hotel Tyger Valley

Negotiation Skills New Course

22 September 2022 (08:30 - 16:00)

Interactive Online Course

 

Our Clients