ALCOHOL ABUSE: WHAT DO TO WHEN AN EMPLOYEE ARRIVES AT WORK DRUNK?
Alcohol abuse… at times, it is a common sight in South Africa. Unfortunately, many social and legal problems are associated with the abuse of alcohol. And there lies the crux of it. When is alcohol use considered “abuse”?
It is trite that many South Africans enjoy a drink every now and again. So, what happens when you arrive at work with a hangover, or worse, still drunk? This is a topic that many managers had to deal with in the past. Unfortunately, every case must be dealt with in a case-by-case basis. It is not merely as easy as dismissing an employee that arrive at work under the influence of alcohol.
Below is a set of steps to use as the standard operating procedure for employees which reports for duty while under the influence of alcohol/drugs (code of good practice):
Step 1: REVIEW, ADAPT, AND IMPLIMENT AN ALCOHOL AND DRUG POLICY
This is the most important step. Creating reasonable rules for the staff to adhere to. During this process, the type of workplace needs to be analysed to determine the severity of the misconduct, should an employee report for duty while under the influence of alcohol/drugs. For example, it could be argued that it would be a more serious offense for a truck driver to report for duty while drunk, than for an cleaner to do so, considering the potential consequences of being under the influence.
On the other hand, to be fair towards all employers, the employer may opt for a zero-tolerance policy. On other words, the company expect the employee to be below a specific alcohol percentage or severe disciplinary action will follow. It is usually best to state a specific allowable percentage of alcohol, for example, 0.0% or 0.05%, etc. Any test result above the limit is considered misconduct.
Regardless of the limit, an appropriate and reasonable policy must be implemented.
Step 2: ISOLATE THE EMPLOYEE
If an employee arrives at work and is suspected of being under the influence (of alcohol or drugs), the employee must be isolated. Do not allow the employee to continue with their duties if it is suspected that they are under the influence of drugs or alcohol. Do not place the employee in an area where they could hurt themselves or others. The most practical way is isolate the employee is to call them into the office and let them wait for the appropriate manager to deal with the situation.
The reason behind this isolation is self-evident. If the employer takes the position that an employee is too drunk to work, it would be grossly negligent for the employer to allow the employee to perform their duties. Furthermore, if the employer charges the employee for “being under the influence of alcohol or drugs”, the employer must inevitably take the position that the employee is unable to perform his tasks.
This notion was confirmed by the Labour Appeal Court in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC). Therefore, should the employee be allowed to continue to work, the employer would be hard-pressed to argue on the severity of the offence. In addition, the Occupational Health and Safety Act, Section 8, placed a responsibility on the employer to ensure a safe working environment for their employees, and to prevent an employee form performing their duties if they are under the influence. As such, the moment the employee is suspected of being under the influence, they must be isolated.
Step 3: TAKE AND RECORD THE EMPLOYEE’S CONDITIONS
An authorised person (management or health and safety representative) must determine the level of drunkenness. In other words, the level of being under the influence. This is a very important step, which is frequently insufficiently recorded.
A good method is to get a calibrated breathalyser tester (from your local pharmacy) to test the employee. This device must be calibrated every 12 months. If the employee test positive (or above the required level), the result must be adequately recorded (i.e., printout or photo).
It is often not sufficient to only have an alcohol tester that test for the presence of alcohol and not the actual quantity (i.e. the crystal test). The reason for this is that the company must proof that the employee is ‘under the influence’. In the case of Mokgatlhe / Xstrata South Africa (Pty) Ltd (Merafe Boshoek Works) [2011] 6 BALR 584 (MEIBC), the commissioner held that in order to proof that an employee is under the influence of alcohol it must be shown that there was an impairment of the employee’s faculties. Therefore, the mere presence of alcohol might not provide adequate proof.
Give the employee a reasonable period to rest (e.g., 15 minutes), and then re-test. Record the reading again. If the readings are similar, the assumption can be made that the readings are relatively accurate. As such, on a balance of probability, it can safely be stated that the employee is ‘under the influence’.
In such a case, it is best to send the employee home, and give them a clear instruction to report for duty the next day. Since the employee is under the influence, it might be best to have a witness present which can testify that the employee received the instruction, as confusion can easily set in.
In situations where it could reasonably be argued that the employee is under the influence, but no calibrated alcohol tester is available, it is usually best to send the employee home. It might be a bit more difficult to proof his condition as a sobriety test would have to be conducted. Such test may include the appearance of the employee, the smell of alcohol, the colour of the eyes, the coherences of speech, as well as reference to his general behaviour, etc.
Step 4: DETERMINE THE REASON
Arriving at work drunk may not always be considered as misconduct. It is the duty of the employer to determine the reason for the alcohol abuse. At times, alcohol abuse may be considered an illness. Incidentally, the two processes have widely different approaches. Failing to use the correct process could lead to unfair labour practise or an automatically unfair dismissal.
If it is known to the employer that the employee has a known dependency condition, or the employee admits being an alcoholic or addict, the situation must be dealt with through the ‘incapacity’ process. However, if the employee is drunk due to social drinking, it is usually seen as misconduct, and the appropriate disciplinary process can take place.
Step 5: CHARGE THE EMPLOYEE
Considering that the employee is considered to have committed misconduct by arriving drunk at work, the employer is obliged to charge the employee and take the employee for a fair disciplinary hearing. If it can be proven that the employee’s faculties had been impaired, a reasonable charge could be ‘being under the influence’. However, at times, heavy drinkers might not be automatically appearing drunk. If the employer has an appropriate zero-tolerance policy in place, which states that any amount above 0.0% alcohol is considered misconduct, the employee could be charged for ‘breach of policy – employee above allowable limit for alcohol’.
If the employee pleads ‘not guilty’ to the charges, the employer must be able to present the alcohol policy, the steps taken to test the employee, and the proof thereof. If sufficient record of the employee’s offence had been adequately kept, the employee would most likely be found guilty of being under the influence.
Step 6: ISSUE AN APPROPRIATE SANCTION
This step should be dealt with very carefully. Alcohol abuse is seen as very serious in many aspects, but it might not be considered fair to dismiss for a first offence.
Every situation must be considered with its own merits. Many employers have a “zero” tolerance policy when it comes to alcohol. It must be noted that a “zero” tolerance policy may only refers to the fact that the employee must be alcohol free. Therefore, one cannot automatically make a blanket ruling to dismiss for a first offence, purely because there is a “zero” tolerance policy.
In addition, the reason for implementing a “zero” tolerance policy must be valid and reasonable. An important factor to consider is the type of work that an employee is performing. For example, there is a far stronger case to be made for an electrician working on high voltage cables. One misstep could cause severe injuries or even the loss of life. Therefore, arriving drunk at work might be considered a dismissible offence. In such circumstances, the employee should rather have stayed at home, and receive a warning for absence, than place his life in danger by reporting for duty.
However, the extend of the quantity of alcohol must also be considered. Taking flu medication containing alcohol might very well provide a positive result for on an alcohol test, but it might not validate a dismissal.
It is always advisable to err on the side of caution, and use dismissal only as the last option.
IN CONCLUSION:
Unless the result of being under the influence can cause serious injury or loss of life, it would be difficult to argue that to dismiss for a first offence would be fair. To dismiss the employee fairly, the risk of not dismissing the employee must be extensive. In other words, it must be plausible and likely that if the employee work while under the influence, a person will get injured or lose their life. If that is not the case, it is usually best to rather issue a final written warning. In a situation where the employee has a history of being under the influence, linked to misconduct rather than addiction, and the employee is a repeat offender with a valid final written warning for a similar offense, the employer can take the appropriate steps and dismiss the employee fairly.
It is always recommended to evaluate each case on its own merits and to use a dismissal only as a last resort. As such, it would also be recommended to obtain the assistance of an experience labour practitioner to assist is such cases.
