Alcohol-related misconduct in the workplace can have serious consequences and should therefore be dealt with decisively. Yet, in their eagerness to address a situation, employers often repeat the same mistakes.

Most common mistakes

The three most common mistakes that employers make regarding alcohol abuse in the workplace are:

• Failing to distinguish between employees drinking at work, having alcohol in their system and being under the influence of alcohol.
• Relying only on breathalyser tests to prove breach of an alcohol-related rule.
• A blanket ‘zero tolerance’ policy.

Getting it all wrong

The employer in the case of Chill Beverages International (Pty)Ltd v the CCMA and others was found to have made all three the mistakes mentioned. After arriving an hour late for work, the employee, a forklift operator, was subjected to several breathalyser tests which all registered positive. No other evidence was presented indicating that the employee smelt of alcohol, was seen taking alcohol or that he had been under the influence of alcohol. The employer rejected the employee’s claim that he had taken cough mixture the evening before and again in the morning and that he was unaware that it contained alcohol. He was dismissed for gross misconduct for failing the alcohol test.

Arbitrator

At arbitration, the employer contended that the employee operated a machine with heavy loads and that it had a zero-tolerance policy when it came to offences relating to alcohol.

The arbitrating commissioner accepted that the employee was unaware that the cough mixture contained alcohol. There was also no evidence that he had consumed alcohol or shown any sign of intoxication when he underwent the tests. In the circumstances the arbitrator found the employee’s dismissal had been substantively unfair.

Labour Court

On review, the Labour Court upheld the commissioner’s decision holding that the mere fact that the employee had failed the breathalyser tests was not sufficient to conclude that the employee had committed alcohol-related misconduct. The Court also confirmed that an employer may not adopt or rely on a blanket zero-tolerance approach for all alcohol-related infractions, regardless of its appropriateness or proportionality to the misconduct concerned. Each case must be considered on its own merits, despite the existence of such a policy.

The lesson for employers therefore is that dismissing someone for failing a breathalyser test will be unfair in the absence of supporting evidence of alcohol consumption, possession or being under the influence. A zero-tolerance policy does not assist an employer in the absence of such proof.

Guidelines for employers

When addressing alcohol-related misconduct, employers should keep the following in mind:

1. Framing the charge correctly

Depending on the facts and company policy, determine whether the appropriate charge is:

• consuming alcohol at work,
• having alcohol in one’s system, or
• being under the influence of alcohol.

Remember, a positive alcohol test does not automatically prove intoxication or that the employee was “under the influence.”

2. Gathering reliable evidence

Consumption of alcohol at work is serious misconduct and generally straightforward to prove. Establishing that an employee has alcohol in their system or is under the influence is more complex. While a breathalyser may serve as a useful screening tool, blood tests and documented physical observations provide stronger, more reliable evidence of intoxication.

3. Applying zero-tolerance with caution

Employers carry the burden of proving that workplace rules are valid. A zero-tolerance policy (where the mere presence of alcohol or a first offence justifies dismissal) should be reserved for high-risk roles, such as employees working at height, driving heavy vehicles, or operating dangerous machinery. Even where such a rule is valid, it does not automatically mean the employee is guilty of misconduct or that dismissal is appropriate. Each case must be assessed on its own merits.For a more detailed discussion on ‘BREATHALYSER’ TESTS, see our previous article at https://labourwise.co.za/labour-articles/just-how-reliable-are-breath-alcohol-breathalyser-tests, and for more on ZERO-TOLERANCE POLICIES, see https://labourwise.co.za/labour-articles/zero-tolerance-approach-shot-down

Written by Jan Truter for www.labourwise.co.za