Employees who come to work under the influence of alcohol or drugs (including dagga) are a problem that can be tricky to handle, requiring clear thinking and a rational response, rather than the ill-considered, sometimes knee-jerk reactions that have characterised some of the decisions that have had to be unravelled by our labour courts at great cost to the employer.
What is your workplace rule on the subject?
Handling the problem of alcohol and drugs in the workplace really starts way before the employee is found to be under their influence at work. There should be a clear policy with valid and reasonable rules on the issue. While setting workplace rules is generally in the employer’s discretion, rules that are irrational, unreasonable or capricious will not be supported. The rules must also be made known to all employees in a way that is easily understood, and the employer must be able to prove that this has been done (Items 3(1) and 7 of the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995, hereafter called ‘the Code’)).
The policy requires careful thought and should make a clear distinction between instances where alcohol or drug abuse amounts to misconduct; and those which may indicate alcohol or drug addiction, which might point to an incapacity on the part of the employee. Misconduct is dealt with by an entirely different procedure than incapacity, and applying the wrong procedure can invalidate the decision that results from that procedure. The policy must be designed around the specific circumstances of the business. Adopting, willy-nilly, the policy of another business just to have something in place, can backfire if it imposes onerous obligations that the law does not require, and that you may not have taken into account. For example, the adopted policy may require that the defaulting employee go through a rehabilitation program before disciplinary action may be considered. Employers will be held to whatever obligations they assume in their own policies (Black Mountain (Pty) Ltd v CCMA and Others 2005 1 BLLR 1 (LC)).
Be clear on what your rule actually addresses or prohibits. There is a difference, for example, between having merely consumed alcohol or used drugs, on the one hand; and on the other hand, being under their influence to the extent that it adversely affects the employee’s ability to perform. Some policies require proof of intoxication and its effect on performance, while others have a ‘zero tolerance’ policy where the misconduct consists in merely being at work if a test shows that the employee has consumed alcohol or used drugs in any quantity at all. If a ‘zero tolerance’ policy is in place, it must be justified by the particular circumstances of the business. The recent case of Enever v Barloworld Equipment South Africa JA86/22) [2024] ZALAC (23 April 2024) made it clear that the blanket application of a ‘zero tolerance’ policy without regard to the specific circumstances will not be accepted, thus somewhat blunting the point of actually having a ‘zero tolerance’ policy in the first place. There may also be different standards that are applied to different categories of employees in the same workplace: a vehicle driver or an operator of heavy machinery, or perhaps a sales representative dealing with the public, may be held to a more exacting standard than a storeman or a filing clerk, for instance (Enever v Barloworld).
If your business has no or an inadequate policy on the subject, you will have to deal with the problem in terms of rules of general application (the ‘common law’ of employment, as it were): it is generally accepted, for instance, that where an employee comes to work too drunk to perform his or her work, that is a breach of the employment contract which the employer is entitled to remedy by disciplinary action, which may or may not result in dismissal.
Misconduct or Incapacity?
As said above, it is important to be clear whether what you are dealing with amounts to misconduct or incapacity. If it is misconduct, then the disciplinary process is the appropriate one to follow (Items 3, 4 and 7 of the Code). If it relates to incapacity, the employer must follow a performance management process (Items 9, 10 and 11 of the Code). Always bear in mind that there may be an overlap of the two considerations, especially where, as generally happens in the case of alcohol and drug abuse, the incapacity may only come to light as a result of an instance of misconduct. Remember, too, that there is no general obligation on an employer to investigate whether the employee may have an alcohol or drug addiction. The onus is on the employee to raise – and prove – the addiction in explanation of the misconduct (Transnet Freight Rail v Transnet Bargaining Council and Others 2011 6 BLLR 594 (LC)). Of course, the employer’s own policy may establish such an obligation. In the case of Black Mountain (Pty) Ltd v CCMA and Others the employee’s dismissal was found to be unfair, mainly because the employer did not comply with its own policy, which required the disciplinary hearing to be suspended while the employee underwent voluntary rehabilitation. If there is in fact evidence of an addiction, the employer’s safest course is to deal with the issue as one concerning a potential incapacity.
What does the available evidence actually establish?
It is one thing to have evidence that an employee failed a breathalyser or a blood or urine test; or was staggering and physically uncoordinated; behaved irrationally; or had glazed or bloodshot eyes, slurred or incoherent speech; or fell asleep at his desk; or whose breath reeked of alcohol. It is quite another to determine what that evidence proves.
If the policy focuses on intoxication and its impact on the ability to perform, for instance, it will not be enough to rely solely on the fact that the employee tested positive on a breathalyser or had a certain quantity of alcohol in his blood or urine. There would have to be additional evidence showing that the employee’s ability to perform or function normally was adversely affected (Enever v Barloworld). This may include evidence of one or more of the observed conditions or behaviours mentioned above. Where a ‘zero tolerance’ policy applies, evidence of intoxication and impact on performance may not be required, depending on the circumstances, but the evidence of alcohol or prohibited substance in the body would in any event need to be beyond doubt. A breathalyser result, on its own, would not be sufficient, although, even if the test result itself is insufficient to meet the requirement for the ‘zero tolerance’ policy, it may yet be sufficient, together with other evidence, to prove actual intoxication.
Sanction
Whether any individual breach of the employer’s policy, or instance of actual intoxication, warrants dismissal for a single instance depends, of course, on the many varied circumstances of each case. It is not feasible to lay down general guidelines in this short note, other than to indicate, by way of example, that first time dismissal is probably more justifiable in the case of the operator of heavy mining machinery, or the driver of a company motor vehicle, where there is a risk of injury to others or damage to property, than in the case of a filing clerk who works in the company archives.
Where the behaviour is being dealt with in the context of incapacity, the question of sanction does not arise, of course, but the process may nevertheless result, depending on the circumstances, in a termination of employment on the ground that the employee’s dependency on drugs or alcohol may render him or her unfit to do the work for which he or she was engaged.
Why bother?
Every employer has a duty under both the common law and the Occupational Health and Safety Act, 85 of 1993, to maintain a safe and healthy working environment. The General Safety Regulations promulgated under this Act go further and expressly oblige an employer to bar entry to the workplace to anyone who is, or appears to be, under the influence of alcohol or drugs.
In addition, an employer has the right in law and in contract to require employees to give their whole attention during working hours to the performance of their responsibilities and to do so with diligence, application, proficiency and skill. All of these entitlements are repudiated, to a greater or lesser degree, by an employee under the influence of alcohol or drugs.
©Kevin Mulligan 2024
For More Information
For guidance and support on understanding and protecting your legal rights, please contact Kevin Mulligan Consulting:
- Email: kevin@mulligan.co.za
- Phone: +27 083 340 0916
