Many employers are faced with the problem of employees consuming drugs or alcohol at the workplace while on duty, or before reporting for duty, with all sorts of excuses such as it ‘is from the night before’ or it being ‘cough mixture’. How can employers best handle this situation? The solution is as simple as a proper workplace policy.
Alcohol and drug consumption policy
The employer’s policy should be clear – zero tolerance. It is advisable not to allow for limits in your policy. The policy must stipulate the test procedure, for example, a breathalyser test for alcohol will be required or a urine test for drugs. The policy must state that circumstantial evidence will be noted such as bloodshot eyes, the smell of alcohol, slurred speech, aggressive, abusive, arrogant or out of character behavior, etc.
The above items should be listed in writing and there should be a witness present for the employer and a witness present for the employee to ensure fairness of the procedure. The employer’s rules regarding alcohol or drug consumption whilst on duty, or off duty before coming to work, must be very specific and warn employees that, should the rule be contravened, disciplinary action will follow which may result in dismissal. The policy should also mention the regulations in the Occupational Health and Safety Act regarding this issue.
A few practical cases
In SACCAWU obo Ntonga & Another v A1 Fisheries it was found unnecessary for the employer to prove how much alcohol had been consumed, but only that liquor had, in actual fact, been consumed. In Spoornet (Ermelo) v SARHWU obo Nkosi it was found that while the employee denied that he has consumed liquor, he refused counselling and rehabilitation assistance on the grounds that he did not have a drinking problem, and his dismissal was therefore found to be fair even on a first offence and with a clean disciplinary record. It was stated that if an employee denies that he has a drinking problem and refuses assistance, then it is simply treated as a misconduct.
However, in SALSTAFF obo Venter v Metro Rail matters took a different turn. The employee was dismissed on several charges of being under the influence of alcohol on duty. The employee denied that he had been under the influence or that he had endangered passengers. During the hearing it was revealed that the employee regularly worked shifts of 18 hours without a break. The arbitrator found that under normal circumstances, dismissal, in this case, would have been justified. The arbitrator then found that the conditions in which the grievant had worked were not normal, and that the working hours required of him did not allow for any recreational time. In fact, the employee’s life consisted of working and sleeping. It was ruled that, rather than dismissal, the employer should have addressed the root of the problem and should have changed the employee’s working hours.
The employee was accordingly reinstated in his employment retrospectively. This shows that employers must err on the side of caution and should conduct a proper and full investigation to establish amongst other things, the causes of the substance abuse problem.
ABOUT THE AUTHOR
Stacy Lee Oberem obtained her LLB degree in 2015 from Nelson Mandela Metropolitan University. She has been with SEESA Labour since October 2015 and has also joined SEESA BEE in July 2017.