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INTOXICATION: Zero tolerance?

Way back in 1969, when I started work with a well-known international soap
manufacturer, I was surprised to find my new boss had a black eye! He had walked into a good right hand at the Company Christmas party!

Apparently an artisan, who had had too much to drink, was making a nuisance of himself. When my boss suggested that he might like to leave the party, the drunk started swinging, with my boss catching a lovely ‘shiner’ in the process.

Even though disciplinary enquiries, as we now know them today, had not come into being, an investigation was held the following Monday. The story to emerge was a familiar one. The fitter was a rehabilitated alcoholic and some of his friends had persuaded him to have a drink at the party. After he had started drinking he lost control of himself. He was very remorseful and apologised profusely for his behaviour.

Fortunately for him, my boss was not the vengeful type and our employer was an enlightened employer (considering the date). The employee was given a warning and sent for further rehabilitative treatment. He was very lucky. Most employers at that time would have fired him on the spot.

Nowadays, Section 10 (3) of the LRA Code of Good Practice: Dismissals holds that in certain cases of alcoholism and drug abuse employers should consider counselling and rehabilitation.

On the other hand the Occupational Health & Safety Act makes it an offence for an employer to allow any person, who is under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.

Substance Abuse Policy

For this reason more enlightened employers have introduced substance abuse policies. Many take a zero tolerance approach and test everyone who enters the premises. Most hold that if an employee actually enters a working area, where there is moving machinery, that employee will face a disciplinary enquiry. If the employee is found guilty, he will be dismissed, even for a first time offence. The same would apply to a driver who gets behind the wheel of a vehicle while intoxicated.

If the employee is tested at the entrance of the premises or before going near moving machinery that employee is normally given a warning or final warning and offered rehabilitation.

Alco/breathalyser testing

If you drive your car with an alcohol level above 0.05%, you will be arrested and could well spend a night in jail. You will, in all probability, also earn yourself a hefty fine and a criminal record if your blood is tested and you are found to be over the limit.

Intoxication at the workplace

But …… being intoxicated at work has a different set of rules. The employer has to prove that the employee was in an unfit condition to work. While an alco-test provides an indication that the employee has had alcohol, on its own, it does not constitute proof of intoxication.

For example, in a recent case South African Transport and Allied Workers’ Union obo Mmotong / Staffing Logistics2018) 27 NBCRFLI 8.37.2 also reported at [2018] 1 BALR 26 (NBCRFLI) an employee was dismissed after a breathalyser test indicated that he had consumed alcohol.

The employee admitted guilt at a disciplinary enquiry stating that he had consumed alcohol the previous day. He claimed that he was unaware of the employer’s zero tolerance policy on alcohol.

The Commissioner noted that the employer had charged the employee for reporting for work under the influence of alcohol. While the employer’s zero tolerance policy was not in contention, the employer still had to prove intoxication.

The breathalyser test had registered 0.05%. It is generally accepted that breathalyser tests are less accurate than blood tests, and that their results are not definitive. Corroborative evidence is required to establish intoxication.

The respondent had not led evidence to prove that the employee was intoxicated to the extent that he was incapable of performing his duties. The employee was reinstated with retrospective effect.

Proof of intoxication

So what proof should the employer have provided?

First of all, it is good practice to complete a Checklist for Assessing Intoxication. This should be completed by the Security department if they are responsible for testing and be witnessed by the employee’s line manager or supervisor. There should be at least one but preferably two independent witnesses to the employee’s state of intoxication.

Observable signs of intoxication should be noted:

  • Any Abnormal behaviour
  • unusually loud / aggressive / over familiar behaviour;
  • euphoria (joking, laughing, giggling);
  • excessively emotional (depressed, crying);
  • erratic, illogical behaviour (e.g. memory loss).
  • Appearance
    • dilated pupils;
    • dazed, unfocused, bloodshot eyes;
    • unclean, unshaven, untidy appearance.
  • Smell (breath smells of alcohol, poor personal hygiene).
  • Coherence thick, slurred, in-coherent speech.
  • Lack of co-ordination – unstable, unco-ordinated.

Physical tests should be applied. For example, ask the employee to walk in a straight line, pick up a pin or operate a cellphone. Ask the employee to touch his/her nose with their index finger or to simply copy something in writing.

Lastly there must be CONSISTENCY. Unless you have given a clear directive and everybody has been informed of it, you cannot dismiss an employee for a first time offence if other employees were warned previously.

If the dismissal is disputed, then remember an arbitration is a complete rehearing so all the documents and witnesses that were used to prove intoxication in the disciplinary enquiry will have to be produced for the arbitration.

BRUNO BRUNIQUEL

Bruniquel & Associates (Pty) Ltd

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