Drinking policy for the workplace
'The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work'
MANY employers wrongly believe that it is a dismissible offence if an employee is found to be under the influence of alcohol at work.
But recent case studies have shown that this is not necessarily the case.
Law firm Cliffe Dekker Hofmeyr Director Hugo Pienaar says even when a staff member tests positive for alcohol on a breathalyser, it does not necessarily equate to the employee being under the influence or that his or her ability to work has been impaired.
‘Employers often mistakenly believe that a positive test result is sufficient proof and charge the employee for being under the influence of alcohol.’
Pienaar noted recent cases which serve as examples that a positive test result is not necessarily sufficient cause for dismissal and the real test is whether the employee’s competence to perform his or her work has been impaired.
In one case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.
But Pienaar says in a scenario where the person’s drunkenness can be proven by sight, smell or conduct of the employee, an employer has a far stronger case.
‘Factors showing drunkenness include aggressive behaviour from the employee, slurred speech and bloodshot eyes.
‘The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work. ‘The onus is on the employer to prove this, but no expert witness is required for such purposes.’
What to do
• The employer should adopt a zero tolerance approach in terms of its alcohol policy in the workplace. Such a policy should be specific and also provide for dismissal, even when the employee has just been tested positive for the use of alcohol.
• The rationale for such policy should be based on the safety considerations of the employer.
This means that an employee may be summarily dismissed irrespective of whether his or her ability to work is impaired or not.
To adopt such a policy depends upon the status thereof and may sometimes simply require consultation with employees before the implementation of such policy.
The employer should always ensure that all employees are aware that a zero tolerance policy is in place and that if they test positive for any usage of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.
• In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly.
• The test should also always be done in the presence of a witness.
• Where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work was impaired – if that was indeed the case.
• If it emerges that an employee is dependent on alcohol, the employer has an obligation to consider providing counselling.
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