Labour Law

Alcohol in the workplace

By 29/08/2009 June 10th, 2012 No Comments
Alcohol in the workplace.
The basis for any contract of employment is that the employee will
render a service to the employer in return for (usually) payment of a
sum of money. Linked to this is the understanding that the employee will
devote his full attention to his work, at least during working hours.

It may be argued that an employee who arrives at work under the influence
of alcohol will not only be unable to devote his full attention to the
tasks which he has to perform but may also constitute a danger to his
fellow employees.

Seriousness

There can be no doubt in anyone’s mind that this is a fairly serious
offence. However for the purpose of disciplinary proceedings, one will
have to determine just how serious. In most companies, a disciplinary
code is used to categorise offences and determine appropriate sanctions.
For example sleeping on the job is generally not as serious as defrauding
the company. The disciplinary code will usually contain provisions for
the issuing of warnings and will state for which offences an employee
can be summarily dismissed.

This being said, the seriousness of a specific offence will vary greatly
depending on the type of work which is being performed. Take for example
the offence of sleeping on the job. If you are a cleaner, taking a ten-minute
nap when you should be working will not impress your employer but he will
hardly be entitled to fire you for it. However, if you are a bus driver,
the same ten-minute nap will put many lives in danger and in all probability
lead to your instant dismissal.

The same can be said of the offence of drinking on the job / coming to
work under the influence of alcohol.

Certainly in any job which involves the driving of a vehicle, an employee
who comes to work drunk would constitute a huge danger to himself as well
as others. Likewise an employee whose work includes the operation of dangerous
machinery would pose a threat to himself and fellow employees if he were
not able to perform his job properly.

In terms of the regulations to the Health and Occupational Safety Act,
an employer may not allow any employee who is under the influence of alcohol
to work any machinery and the employee must be sent home. This issue was
also dealt with in the Arbitration hearing between Khumalo and Silvacel
(KN13392)

Proof

In terms of the Constitution, no person who is accused of an offence
should have to prove his own innocence. The rule of “innocent until
proven guilty” requires that (in this context) the employer will
have to put certain charges to the accused employee and will then have
to prove that he is in fact guilty of them. It is not up to the employee
to prove that he is not guilty.

It must be noted that it is not fair to dismiss an employee on the basis
of suspicion or even on the basis of a strong suspicion. The guilt of
an employee must be proven (on a balance of probabilities) before any
action may lawfully be taken against him.

So now the problem arises of how to prove drunkenness. We must remember
that an employee is entitled to a fair hearing, even in the most serious
of cases. This means that he must be given a fair opportunity to reply
to the allegations made against him. The difficulty lies in the fact that
“drunkenness” is a vague and subjective term and also in that
it may be better concealed by more “experienced” drinkers.

For traffic purposes, a person is considered “drunk” or “under
the influence of alcohol” if his blood alcohol content is higher
than 0.05, however this is not the only standard. Certain facts will be
obvious, for example the person may smell of alcohol, be unsteady and
slur his speech. In the absence of any other reasonable explanation, these
will allow the drawing of a reasonable inference that the person is drunk.

If breathalyzer equipment is available, it should be used only by a person
trained in its use and the reading should be shown to the accused party
and noted down so that it cannot be disputed later.

As the use of a breathalyzer may constitute a breach of the employees
right to privacy, his consent should be obtained first. Should he refuse,
this may further the belief that he is drunk, a point which should be
explained to the employee in the case of his refusal. In this regard,
see Mpisi and Rainbow Farms, KN762

Sanction

As with any offence, the next question is ‘what is the appropriate punishment’.
Everyone is familiar with the notion that the punishment must fit the
crime and that is what must be applied in each case.

As the seriousness of the “crime” will vary from industry to
industry and from job to job, the punishment which is to be implemented
must be decided on within the context of each individual situation.

It should be noted that dismissal is a serious step and should only be
implemented if there is no other possible alternative. Especially with
regard to an employee who shows signs of being an alcoholic, dismissal
may only make the situation worse. In many cases (e.g. the Silvacel Arbitration
case supra) a distinction is drawn between “drunkenness” and
coming to work “under the influence”. The first case indicates
an employee with an alcohol related problem and involves repeated offences
while the latter involves occasional incidents.

An employer is obliged to take an employees personal situation into account
before dismissing him and, while an employer is not legally bound to,
the possibility of rehabilitation should be considered as discussed by
the Agricultural Labour Court in Esau & ‘n Ander v Wynland Boerdery
Belange (Edms) Bpk h/a Zetler Bros. (1995) 16 ILJ 237 (ALC). This is of
course supposing that the employee agrees that such a need exists.

All this being said, cases may arise where the company has no choice
left but to dismiss the employee. If this proves to be the case, the employer
is going to have to show that reasonable chance for improvement was allowed
for and that use was made of warnings or counselling.

A Case Study.

A recent Arbitration case which dealt with this issue was Le Roy and
S.A. Express Airways GA20054.

In this case, the employee was a pilot and was dismissed after being
found under the influence of alcohol. The dismissal was then challenged
as being unfair.

At the time of the incident, no breathalyzer tests were taken and only
the evidence of witnesses was led at the disciplinary inquiry in order
to prove that the employee was under the influence (which he disputed).
The evidence consisted of the smell of alcohol on his breath, the disheveled
and tired appearance of the employee, the unsteadiness of the employee
and failure to abide by Standard Operating Procedures at a risky phase
of flight.

This was considered a dismissible offence due to the fact that many lives
were put at risk as well as the fact that the employees conduct contravened
many laws and regulations relating to aviation.

The Commissioner found the employees conduct to be “highly irresponsible”
and “incompatible with a continued relationship of trust between
an airline and a pilot” His dismissal was found to be both procedurally
and substantively fair.

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996.ExpertiseLitigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology.Committees/ TrustsLaw Society of South Africa Information Technology Committee. Trustee Verney College Educational TrustOtherTransvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.