Reporting for duty under the influence of alcohol, whether intoxicated or not, may constitute misconduct in terms of Schedule 8 of the Code of Good Practice of the Labour Relations Act. Whether or not the misconduct warrants a dismissal remains a bigger problem for employers who adopt a gung-ho approach to under-the-influence on-duty cases, only to be hit with unfair dismissal rulings in the CCMA. This article addresses the charge of “drunk on duty” as a form of misconduct and not as incapacity.
It is a common misconception that testing positive for alcohol is prima facie proof of “being drunk”, this misconception can result in adverse consequences in the CCMA. Testing for alcohol can be done two ways;
The first is where the employee’s drunkenness can be proven by observation of the employee by co-employees or senior employees of the employer. This can be observed by sight, smell and/or the conduct of the employee showing drunkenness such as aggressive behaviour, stumbling, sleeping, slurred speech and bloodshot eyes, for example.
The second is where an employee tests positive for alcohol on a breathalyser or similar device or alternatively through blood testing. A positive outcome does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired.
Intoxication is the degree of drunkenness to such an extent that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes. The employer merely has to show on a balance of probabilities that the employee was incapable of performing his duties.
In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC), the Labour Court found that a positive test result on a breathalyser test is not sufficient proof to indicate that the employee was under the influence of alcohol. The court relied on Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC), which stated that the real test is whether the employee’s competence to perform their work has been impaired.
The appropriateness of a summary dismissal requires a consideration of all surrounding circumstances of each case. In South African Breweries Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 665/2011)  ZALCCT 17, the Labour Court set out factors in determining whether dismissal is appropriate;
- The totality of circumstances;
- The importance of the rule that had been breached;
- The reason the employer imposed the sanction of dismissal;
- The harm caused by the employee’s conduct;
- Whether additional training and instruction may result in the employee not repeating the misconduct;
- The effect of dismissal on the employee; and
- The employee’s service record.
In this case, the Arbitrator found that although the employee broke company policy, the testing did not show he was under the influence of alcohol. Further, the employee did not cause any harm to the employer.
In National Union of Metal Workers of South Africa v Trentyre (Pty) Ltd and another JA49/05, the Labour Court set out further:
“It needs to be pointed out that it is not our law that the mere fact that an employee is found to be under the influence of liquor in the workplace on a particular day means that the only appropriate sanction in every case is dismissal. Each case must be decided on its own merits, but generally speaking, progressive discipline must be applied. This does not mean that it will never be fair for an employer to dismiss an employee for a single instance of being under the influence of alcohol.”
“Whether or not dismissal is a fair sanction in a particular case is an issue that must be decided with due regard to the nature of the employee’s job, his length of service, his disciplinary record, the extent to which he was under the influence of alcohol and other relevant factors.”
“Whether or not the sanction of dismissal is fair in a particular case is a value judgment that the CCMA commissioner or some other arbitrator must make on the basis of his or her own sense of fairness which, subject to other grounds of review set out in sec 145 of the Labour Relations Act, 1995.”
In Tanker Services (Pty) Ltd v Magudulela (1997) 12 BLLR 1552 LAC in which it was found that the employee, who was found to have been under the influence of alcohol, committed an offence justifying dismissal.
The employee was dismissed for being under the influence of alcohol while driving a 32-ton articulated vehicle belonging to the employer. The court held that an employee is ‘under the influence of alcohol’ if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. The evidence required to prove that a person has infringed a rule relating to the consumption of alcohol or drugs depends on the offence with which the employee is charged. If employees are charged with being ‘under the influence’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyser tests…
Whether employees are unable to perform their work depends to some extent on its nature. In Tanker Services, the question was whether Mr Magudelela’s faculties had been impaired to the extent that he could no longer perform the ‘skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance’. Having found that he could not safely do so in his condition, the court concluded that Magudelela’s amounted to an offence sufficiently serious to warrant dismissal.
The pre-requisite for harm is not always relied on. In the case of NUMSA obo Davids vs Bosal Africa (Pty) Ltd, the employee had tested positive, however, they had been operating a heavy crane some time prior to testing. The Arbitrator found the dismissal to be fair because of the danger that the employee’s condition posed for the risk of harm to others and damage to the employer’s reputation.
In NUMSA obo Motsele vs Haggie Wire and Strand 2006, 2 BALR 163, the employee again argued that, while he had been drinking alcohol, he was not drunk, and his ability to work was not impaired. The Arbitrator upheld this decision after finding that:
- There was sufficient evidence to show that the employee was intoxicated;
- the employee denied that his condition had impaired his ability to work and that this denial counted against him;
- the employee was aware of the potential consequences of his actions;
- the employer is entitled to set standards of conduct which arbitrators should not lightly interfere with.
The Arbitrator found that the employee’s conduct rendered the continuation of the employment relationship intolerable.
An employer should adopt a zero-tolerance in terms of its alcohol policy in the workplace. Such policy should be specific and also provide for a summary dismissal, even when the employee has just been tested positive for the use of alcohol, as the employee will be in breach of policy.
In Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (C24/2011)  ZALCCT 18, the Labour Court in finding the Arbitrators decision reasonable;
“I find this approach to be unfair. A clerk, for example, would not be a danger to himself or to others and would not tarnish the image of the company as he would seldom, if ever, deal directly with clients or customers. However, this would be totally different for an individual who held the position of a driver, a pilot or a managing director.”
The employer will still have to show that the employee was intoxicated, and the potential harm outweighs corrective disciplinary action.
Article by: Wesley Lazarus
Dispute Resolution Official – George