April 2018 Newsletter

Have you as the employer ever been faced with a situation where you caught an employee under the influence of alcohol or in the act of drinking alcohol, even worse, company alcohol…
The use of alcohol in the workplace can be seen as a major issue in South Africa. It has become an increased trend amongst employees to arrive at work under the influence of alcohol, or even worse, to consume it in the workplace during working hours. When looking at discipline in the workplace regarding the use of alcohol or drugs, employers are urged to implement a clear policy regarding alcohol and drug consumption. Employers should also make it a priority that all employees are aware of the alcohol policy that is in place as well as disciplinary actions that can be when an employee is in contravention of the policy.
Although an employee may test positive for alcohol, it does not automatically imply that they are under the influence. According to recent case law, an employee’s “drunkenness” should be proven either by 1) the employee’s conduct (the employee acts in an unusual manner and cannot perform their duties), 2) smell (smelling alcohol on the employee’s breath for example) and/or 3) sight (seeing the employee in the act of drinking). When a case is made against the employee, the onus rests upon the employer to prove the employee was under the influence or made use of alcohol.
Before employers take disciplinary action against employees, they should take the following factors into consideration: 1) What behaviour is seen as generally accepted within the workplace, 2) the nature of the business, and 3) the possible harm that can be caused by the employee after consuming alcohol. These factors can influence the severity of the offence and can be the difference between a warning or a dismissal. For example, an office worker who consumed alcohol before the start of their working day may be able to continue with his/her daily tasks without harming anyone and completing these tasks to acceptable company standards. However, a truck driver who consumed alcohol before his shift may not only present a danger to himself, but also to company property as well as innocent bystanders as he may be likely to cause an accident.
The fact of the matter is still that when an employee is able to perform their work to acceptable company standards and to a level of competence that can be expected of a person of sober nature, dismissal for alcohol use may be judged as unfair. Case law also suggests that if an employee is found to be under the influence and not sent home on the day, but later dismissed, the case might be referred to the CCMA with the argument that the employer still saw the employee fit on the day in question to perform their daily duties to the required standard. Therefore dismissal may be ruled as unfair.
Although alcohol use is mostly dealt with as a form of misconduct, alcohol abuse can be seen as a form of incapacity and must in some instances be treated as such. It is important that employers must be able to differentiate between the two. The use of alcohol can be seen as a one time or non-regular occurrence whereas alcohol abuse can be defined as the early stages of alcohol dependency which is classified as a disorder. In cases of alcohol abuse, employers should rather investigate options such as counselling or rehabilitation to help the employee as an alternative to dismissal. However, when looking at all of the above, it is extremely important for an employer to have a proper alcohol policy in place, to make sure employees are thoroughly aware of the policy and what disciplinary action can be taken if the policy is transgressed. It is also of utmost importance to apply the policy consistently throughout the company. This creates little space for employees to sidestep the situation and go unscathed when making themselves guilty of violating the alcohol policy.
Need to get an Alcohol & Drug Policy in place, contact Invictus Group on 0861 737 263.
The Bill was passed in Parliament at the end of November 2017, but what does that actually mean for fathers?
At present, Fathers are not entitled to the 10 days’ paternity leave as provided for in the Bill. The 10 days’ paternity leave will only come into effect once the Bill has been reviewed by the National Council of Provinces and passed into law by our President. Fathers of new born babies will still have to take family responsibility leave as no provision is made for paternity leave or for paternity leave for adoption or surrogacy in our current legislation.
Family responsibility leave is only 3 days’ per year and fathers are reminded that in terms of the Basic Conditions of Employment Act (Section 27), they will only be entitled to family responsibility leave after working for 4 months and at least 4 days a week. Alternatively, a father would have to request annual or unpaid leave.
Once the Bill is passed into law, what parental leave will fathers, adoptive parents and surrogacy parents be entitled to?  

  • 10 days’ paid paternity leave;
  • 10 weeks’ paternal adoption leave (on provision that the baby is not older than 2 years and only applies to 1 parent);
  • 10 weeks’ surrogacy leave;
  • Increased UIF and maternity benefits.

Once the Bill is signed by the President, it becomes an Act of Parliament and a law of the land. Fathers are warned that they do not automatically qualify for paternity leave and that their name MUST be on the child’s birth certificate.
The Department of Labour is urging employers to apply for an exemption before the implementation process commences.
 The proposed implementation date is less than a month away and employers are advised to apply for an exemption with the Department of Labour as a matter of urgency.
What is the National Minimum Wage and how will it affect you?
 The National Minimum Wage is set at R20 an hour. This amount will be reviewed annually and will be applicable to all sectors excluding the following:

  • Farm/Forestry Workers: R18 per hour;
  • Domestic Workers: R15 per hour;
  • Workers on the Expanded Public Works Programme: R11 per hour; and
  • Learners will have a separate arrangement.

How do you go about to apply for the exemption?
The Labour Department’s Deputy Director (Mathilda Bergmann) explained that ‘exemptions can only be granted if every representative trade union/workers have been meaningfully consulted and all the required information by the system has been provided.’
Furthermore, employers must make sure that they provide their employees with a copy of the application form (which will be attainable from the system) and employers must make sure that a copy is displayed at the workplace accessible for all employees to read.