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.


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