BRENTWOOD

2022-11-23

Under the influence at work – especially this time of year.

With the festive season looming closer, we are having an early flood of drug and alcohol related misconduct.

Alcohol Questions and Answers

1. How much alcohol is too much alcohol at work? 
Alcohol use, and influence has a zero tolerance.  If an employee is tested and they have any alcohol reading they have too much alcohol for the day.

2. Is it necessary to prove how much alcohol has been consumed?
No. Only that alcohol has been consumed.

3. Can you dismiss for testing positive for alcohol on the first offence?
It depends on the company disciplinary code, as well as company precedent.

4. What circumstances will determine of dismissal is appropriate?
The level of alcohol, the danger at the workplace for the company, the employee and their colleagues (this includes physical danger and the risk of potential danger), the necessity for the employee to be completely sober in their job function.

5. Must the company have a zero tolerance policy?
Yes.

6. Must the zero tolerance be documented in the drug and alcohol policy?
Yes, and employees should know the contents of the policy.

7. Do you have to have a breathalyser?
No, but a breathalyser is a better idea.  You can work on the results of a field sobriety test and observation where an employee is probably under the influence. Make sure you have witnesses who agree. Obvious signs of alcohol consumption can include the smell of alcohol on the breath, bloodshot eyes, unsteady on the feet, attitude (aggressive  or confrontational), turning the face away from the person being spoken to, shielding the mouth with a hand when speaking, unusually dishevelled appearance, and so on.

8. If an employee has only one common sign of intoxification is it enough to be considered under the influence?
No

9. Must the breathalyser be calibrated?
Yes.

10. Must an employee consent to taking a test?
Yes. It can be included in your contracts of employment, or a document to sign at the time of the testing.

11. Are employers permitted to perform a breathalyser test on employees whom they suspect are under the influence?
Yes, with their consent.

12. Can I assume an employee is under the influence of they refuse to take a test?
No. If the employee refuses, the employee should be disciplined for such refusal.

13. Can I dismiss an alcoholic if he declares that he is an alcoholic?
No, not initially.  If an employee is an alcoholic the employer should counsel and assist the employee to access treatment. There should be some leniency showed to allow the employee to get help.  Generally employers will issue a Final Written Warning, rather than dismissal, with a commitment for rehabilitation and treatment.  If the employee relapses and comes to work under the influence again, generally dismissal is appropriate. When an employee refuses counselling and rehabilitation assistance on the grounds that they did not have a drinking problem, dismissal fair even on a first offence and with a clean disciplinary record.

14. Is the employer responsible for rehab?
No. The employee is responsible for his rehabilitation/treatment and to stay sober.

15. Does the employer have to pay for rehab/treatment?
No.

16. What about alcohol at end of year functions?
All the rules are not suspended for the end of year function.  The rules have relaxed a little, but it is the responsibility of the employer to remain employees that responsible drinking is required, that discipline as a result of misconduct can take place, etc.

17. Can disciplinary action follow misconduct at the end of year function?
Yes. Disciplinary action can take place against an employee for any conduct – on or off the premises – that affects the employment relationship.

18. What about drinks with clients?
With authorisation drinks with clients can take place, but the rules don’t change.  After the drinks the employee may not return to work.

19. If the employee was drinking away from work, is being under the influence still misconduct?
Yes.  The previous nights activities have a direct bearing on the working day.

20. What about medication containing alcohol and that may have side effects impairing work ability?
This should be discussed this with the  supervisor/manager before the working day.  If the medication is affecting the ability to work, that employee should rather take sick leave. In terms of Regulation 2A of the OHSA the employer may only allow a person taking medication to perform duties at work if the side effects do not constitute a threat to the health or safety of that person or others at work.

21. What does the CCMA consider when for dismissals based on alcohol?
- Did the employee know of the rule and was he/she aware that breaching it could result in dismissal?
- Did the employee wilfully commit the misconduct?
- The nature and responsibilities of the employee’s job function.
- The importance of the rule breached.
- The principles and application of progressive discipline and the importance of consistency.
- The employee’s disciplinary record.
- The harm (or potential to bring harm) as a result of misconduct

Employer obligations:
- The onus is on the employer to create a safe working environment for all employees [governed by the OHSA]
- Adopt a zero-tolerance approach policy. Allow no room for specified limits

Zero-Tolerance Policy:
- The policy must indicate the test procedure (i.e. a breathalyser test for alcohol consumption; urine test for drugs; medicals)
- The policy must take note of circumstantial evidence (i.e. observation form) – when conducting an observation form, ensure that there is a witness present to ensure fairness of the procedure
- The policy is to clearly stipulate that testing may be based off random selection
- The policy is to refer to the Occupational Health and Safety Act (OHSA)
- The policy is to accommodate for recreational time
- The workplace policy is to govern the workplace and therefore supersedes SA regulations based on consuming alcohol / drugs in your personal capacity.
- It is to be highlighted that capacity of the employee is critical, no matter what position they hold.

Employee Assistance
- The employer is to make every attempt to address the root of the problem
- The employer is to offer assistance to the employee, should they declare an addiction.
- After offering assistance, the onus is on the employee to continue in a clean habit and not to relapse.
- Should the employee relapse, the employer has then exhausted all avenues, and may commence with disciplinary action
- Should the employee deny they have an addiction, and refuse assistance, then disciplinary action may commence.
- Dismissal for arriving to work under the influence / intoxication of substances and alcohol, on a first offence may be fair if it is going to impair that the employee’s faculties to perform their duties. In such instances, no rehabilitation may be required. E.g. a Driver operating a 4 ton truck. If the employee has longer service and zero tolerance has not always been applied in the company, and the employee mentions that they do have an addiction/problem, the employer is to opt for a safer route, by means of incapacity.

Roxanne Fielies and Mark Kerruish

If you need assistance, give us a shout:
011-963-0363
mark@brentwood.co.za
michele@brentwood.co.za
roxanne@brentwood.co.za