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Drunk enough to be dismissed?

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Hugo Pienaar and Elizabeth Sonnekus from Cliffe Dekker Hofmeyr examine what the law says about work and drinking.
One would think that if an employee is found to be under the influence of alcohol at work it is a straightforward dismissible offence. Recent case law has shown that this is not necessarily so. Employers often operate under the mistaken belief that testing positive for alcohol equates to the employee being under the influence of alcohol.
Alcohol and drug abuse is a form of misconduct. Schedule 8 of the Code of Good Practice of the Labour Relations Act, No 66 of 1995 (LRA) recognises misconduct by an employee as a fair reason for dismissal.
There are two scenarios in which an employee may be charged for their use of alcohol at the workplace:
* The first scenario is where the employee’s drunkenness can be proven by sight, smell and/or the conduct of the employee. Factors showing drunkenness include aggressive behaviour from the employee, slurred speech and bloodshot eyes. The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes.
* The second scenario is where an employee tests positive for alcohol on a breathalyser apparatus. A positive outcome does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired. Employers often mistakenly believe that a positive test result is sufficient proof to show that the employee was under the influence of alcohol and then mistakenly charge the employee for being under the influence of alcohol. Recent case law has confirmed that a positive test result is not necessarily sufficient to dismiss an employee. In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC) the Labour Court found that a positive test result on a breathalyser test is not sufficient proof to indicate that the employee was under the influence of alcohol. The court referred to Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC) which stated that the real test is whether the employee’s competence to perform their work has been impaired. In this case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.
What should an employer do?
* The employer should adopt a zero tolerance in terms of its alcohol policy in the workplace. Such policy should be specific and also provide for a summary dismissal, even when the employee has just been tested positive for the use of alcohol or drugs. The rational for such policy should be based on the safety considerations of the employer. This means that an employee may be summarily dismissed irrespective of whether his/her ability to work is impaired or not. To adopt such a policy depends on the status thereof and may sometimes simply require consulting with the employees before the implementation of such policy. The employer should always ensure that all employees are aware that there is a zero tolerance policy and that if they test positive for any usage of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.
* In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly. The test should also always be done in the presence of a witness.
* However, where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work was impaired – if that was indeed the case.
* If it emerges that an employee is dependent on alcohol the employer has an obligation to consider providing counselling and assist the employee as is set out in item 10 of Schedule 8 of the LRA.