Employees being under the influence of alcohol whilst at work has many severe consequences for employers. An employee who is under the influence can become unruly and can furthermore be a safety hazard within the workplace.
The CCMA and Labour Court have historically been strict in their approach to dismissing employees who are under the influence, and employers were often forced to prove that the employee could not perform their job correctly and that their faculties were impaired. This position, namely that an employee would be “under the influence” if he was not able to perform his tasks, was confirmed by the Labour Appeal Court in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC). Whether an employee can perform the tasks assigned to them whilst under the influence may also vary greatly depending on their job.
Case Study – Employee Dismissed for Alcohol Use in Zero-Tolerance Workplace
In the very recent matter of Trover v Everstar Industries (Pty) Ltd (2020) 9 BALR 1013 (CCMA), an employee with 12 years of service with their employer was dismissed after a breathalyser test indicated that there was alcohol in his bloodstream.
The employer submitted that they had a zero-tolerance policy for alcohol and had consistently dismissed employees for being under the influence of alcohol. This was justified because the workplace was dangerous.
In accordance with the employer’s policy, should an employee blow positive, the employee is to be detained at the gate and be required to undergo two further tests, after a 5 and 10-minute interval, to ensure that the readings were accurate. The employee, as well as 2 other employees, were held back for subsequent testing. The 3 employees were shown their readings, and it was submitted that there was no possibility that the readings would have been mixed up, as they were written down on an “Alcohol Test Register”.
Breathalyser Test Results Hold Weight in CCMA Case of Dismissal
It was common cause that the security guard who conducted the test and the supervisor who oversaw the test were both qualified to undertake the tasks respectively. Furthermore, a calibration certificate was submitted, which indicated that the breathalyser machine had been calibrated accordingly with the Health and Safety standards as well as the Security Officer was present for the latter 2 readings and confirmed that they were accurate and correctly recorded.
The employee alleged that the testing was faulty and that the test results were either incorrect or that they were the results of another employee. The employee submitted that he had consumed a couple of alcoholic drinks the previous afternoon and had taken 2 spoons of cough mixture the previous night before going to bed at 19h30 and another two spoons of cough mixture the morning of the 8th of July.
The company witnesses stated that the employee’s personality was different on the day in question, and he had acted “sheepish” during testing and had an alcohol smell on his breath.
Dismissal for alcohol consumption upheld under the zero-tolerance policy
The Commissioner held that it is commonly accepted that the average person takes one hour to metabolise 1 unit of alcohol. Thus the employee had failed to explain the readings based on his consumption of alcohol before the test. An enquiry was further made by the Health and Safety and Security Officer to a medical doctor who informed him that the applicant would have had to consume 8 bottles of cough mixture for his breath to register on the breathalyser machine.
The Commissioner found that the employee, by arriving under the influence at work, had infringed a valid and reasonable rule. This rule would be undermined if he were to be reinstated. The commissioner found that the employee’s dismissal was thus fair.
The Commissioner highlighted that in cases where employees are tested daily upon their arrival at work for being under the influence, a final written warning may be an appropriate sanction for employees found to be under the influence. However, in cases where testing is done at random and there is a zero-tolerance policy in place, depending on the individual facts at hand, dismissal may be appropriate.
Importance of clear policies and proper procedure in alcohol testing for employers
As employers, it is essential to ensure thus that should you have a zero-tolerance policy for alcohol, the same must be clear, and communicated to the employees. The correct procedure to measure whether employees are under the influence must also be set out, and the company must ensure that they comply with such policy when conducting tests. Tests must be carried out correctly and accurately and in the presence of the prescribed and qualified people, in terms of the company policy.
Where possible, observation tests are still helpful in corroborating the evidence from the breathalyser test. If the employee smells of alcohol, their eyes are red, or they are unsteady, or acting strangely, the same can be noted on the relevant forms and used to corroborate the evidence gathered in relation to them being under the influence.
Contact us at 0861 737 263 should you have any queries or requirements regarding employees being under the influence of intoxicating substances or should you require us to conduct your disciplinary inquiries.
