Misuse of drugs or alcohol while performing job-related duties, consuming drugs or alcohol prior to starting work, with various excuses such as “it’s from the night before” or “it’s cough mixture.”
This is a dilemma that employers encounter frequently – unfortunately.
Occasionally, workers would “nip out to grab a quick one” during their lunch break, or field sales personnel will “have a few” while entertaining clients to lunch.
There is a great deal of case law on dismissals for these varying forms of offense.
The Employer’s Policy on Alcohol and Drug Consumption on or off during Employment is the key requirement seen in case law.
Firstly, there should be a clear zero tolerance in the policy. The inclusion of limitations is not always of assistance.
Secondly, the policy has to outline your test process. For instance, a breathalyzer test for alcohol or a urine test for drugs will be necessary.
The policy must specify that any circumstantial evidence, such as bloodshot eyes, slurred speech, the smell of alcohol on the person’s breath, unsteadiness on his/her feet, unkempt physical appearance, aggressive or abusive behavior, arrogant behavior, or behavior that is out of character, will be noted, as well as the inability to walk on a straight line for a distance of 10 meters with the arms outstretched (as but examples).
The Occupational Health and Safety Act requirements pertaining to this issue must also be mentioned in the policy.
An extrapolation of Case Law:
In SACCAWU obo Ntonga & another / A1 Fisheries [1999] 8 BALR 943 (CCMA), it was determined that the employer did not need to demonstrate the quantity of alcohol consumed, simply that it had been consumed.
In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was determined that even though the employee denied consuming alcohol, he declined counseling and services for rehabilitation on the grounds that he did not have an alcohol addiction.
As a result, his dismissal was deemed to be fair even though it was a first offense, and he had a spotless disciplinary record.
According to what has been stated, if an employee refuses help and claims he doesn’t have an alcohol addiction it will simply be regarded as misconduct – in the correct circumstances.
The situation changed in SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA). On multiple occasions, the employee was charged on several accounts of consuming alcohol whilst on the job, and was dismissed as a result.
The worker rejected claims that he had been intoxicated or had put passengers in danger.
It was made known throughout the hearing that the employee frequently put in 18-hour periods without any downtime. The arbitrator concluded that dismissal in this case would have been appropriate under normal circumstances.
The arbitrator did find that the accused employee had worked under unusual circumstances and that the working hours expected of him did not allow for downtime of any kind.
He actually maintained a life of work and sleep. It was determined that the company should have adjusted the employee’s working hours and addressed the underlying issue rather than dismissing him.
As a result, the individual received retrospective work reinstatement.
This demonstrates that companies should take extra precautions and carry out a thorough investigation to determine the causes of the substance abuse problem, amongst other things.
Policies in this regard are, to say the least complex – as are legal proceedings stemming therefrom.
Rather ensure that this is addressed proactively… Feel free to contact our office for assistance and advice.
Written by:
Charlene Hefer (Candidate Attorney)