Abstain to Sustain – Alcohol and Drug Consumption Policies – PAY ATTENTION!

“Drunkenness is nothing but voluntary madness.” – Seneca

Introduction

Alcohol in the workplace, whether as an after effect or an ‘in progress’, is nothing new in the retail motor environment. I cannot say ‘most of us’, but I can say ‘a number of employees’ rely heavily on the use, or effect, of alcohol. Be that to cope in a difficult robust environment; to combat a broken heart; to enjoy time with friends and family; or to unwind after a hard day at work. Regardless of whether you are happy or sad; alcohol seems to be the answer of choice, in many homes in South Africa. This is becoming an increasing epidemic. 

• Reality proven by statistics:

According to the World Population Review the Global Drinking Demographics for South Africa in 2019, showed that the average liters of pure alcohol consumed per year (between both men and women) was 9.45 liters! Men consume an average of 15.74 liters of alcohol per annum and woman an average of 3.46 liters. Now, whilst this number could appear to be relatively low, it is important to note the measures noted above show pure alcohol consumption. For instance, an average glass of wine or a can of beer holds 0.0178 liters/17.8 ml of pure alcohol. More practical, based on the above, men on average consumed 884 cans of beer, whilst women on average consumed 194 glasses of wine! Shockingly interesting!

Under the weather

Leaving statistics at bay, and returning to the topic for the week; we recently received a legal query from a member, requiring assistance relating to a dismissal for “reporting for duty having traces of alcohol in your system,” and “breach of company policy and procedure.” This member, had been employed by the company for four (4) months, at the time of the incident – barely out of probation.

On the day in question the member notified his employer forty (40) minutes after the start of his shift that he was “running late;” upon his arrival the member remained in his vehicle trying to collect himself. His manager, noticing him in the parking lot, came out to see if he was alright, it was reported that he appeared to be “under the weather and his eyes were bloodshot red.” His manager enquired into his wellbeing, to which he replied that he is “just a little tired.” Later, it was testified in the hearing that “he appeared to be intoxicated given the slurred speech, bloodshot eyes and the smell of alcohol.” The member confirmed that he had been drinking the previous night.

In compliance with the company policy and procedure, the member confirmed his willingness to undergo the breathalyzer test which he subsequently failed – testing positive for being over the legal drunk-driving limit. The member’s request to go home was declined, given the state he arrived at work in, and the failed breathalyzer test. Further test were done, including an appearance observation test, in accordance with the company disciplinary code.

The employer confirmed that our member, a technician, was not in any state to carry out his duties as it would have exposed the employer to significant risks and decided to send him home. Following the disciplinary enquiry, the member was subsequently dismissed.

Workplace Policies

The scenario set out above reaffirms the importance of knowing your Employers’ Policies & Procedures. As was stated in the disciplinary outcome, with the Employer’s Zero Tolerance Policy in mind: ‘whether or not any harm resulted from the conduct or behaviour of the Accused is irrelevant. What matters is that it had the potential to cause harm and that is completely unacceptable.’ MISA published an article last year entitled Zero Tolerance Policies – Tipping the Scales, you can find it here; today, however, we explore Alcohol and Drug Policies in the Workplace.

The Code of Good Practice – Schedule 8 (hereinafter referred to as the Code), section 3(1), emphasises the need for employment justice, efficiency and mutual respect between employers and employees. Section 3(2) of the Code, stipulates that employers should adopt rules that regulate the standards and conduct required from employees in the workplace. In this instance, the company held a zero-tolerance policy to the consumption of alcohol and drugs. Section 3(4) of the Code provides that dismissal after a first offence is not generally appropriate, “except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.” [own emphasis]

The chairperson in balancing the mitigating factors and the true remorse shown by the member with the ‘dangers posed by misconduct of this nature in the workplace’ confirmed that ‘there is after all no point in the Company having all of these fancy policies, procedures and protocols in place regarding alcohol related misconduct in the workplace, if dismissal is not imposed as a result of an employee failing to adhere to same.’ [own emphasis]

• Key Elements

During the disciplinary enquiry and the evaluation after dismissal, the five (5) key elements to prove substantive fairness in the workplace were considered: Is there a rule? Is the member aware of the rule? Did the member contravene the rule? Have the rules been consistently applied? Is the trust and working relationship broken, as a result?

An important consideration was the member’s job functions including the nature and responsibilities. The member was employed in the capacity of repairing and servicing of vehicles, the risks include the potential for severe and dire consequences which will undoubtedly impact on the health and safety protocols in the workplace. Section 8(1) of the Occupational Health and Safety Act, Act 58 of 1993 (OHSA), requires an employer to provide a safe working environment that is without risk to the health of employees, as far as reasonably possible.

• Under the Influence or Not

In NUMSA obo Mbali and Schrader Automotive SA (Pty) Ltd (2005) (MEIBC) an employee arrived at work smelling of alcohol, with a blood alcohol-level of 0.05% per 100ml. The employee was charged and subsequently dismissed for being under the influence of alcohol during working hours. The employee claimed that he was not under the influence of alcohol and last consumed alcohol the night before at 9pm. Witnesses confirmed the employee smelled of alcohol, exhibiting no other signs of being under the influence of alcohol. The commissioner found the dismissal unfair and reinstated the employee. The significance of this matter was that the employer could not prove that the employee was under the influence of alcohol, meaning the employer was unable to prove that the employee was unable to perform his normal duties as a result.

Grogan states in his book, Workplace Law, that employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. “Under the influence of alcohol” refers to an employee who is unable to perform the tasks entrusted to him with the skill expected of a sober person.

In casu, the nature of the member’s duties played a significant role in the fairness of the sanction, in conjunction with the breathalyzer test and appearance observation test.

Conclusion

In line with the subject of this article, ‘abstain to sustain’! Most of us, unknown to your colleagues or employer, might be under tremendous pressure; be that financial; health or family. Do not self-medicate as this will rob you from the one certain in your life, your job-security.

Familiarise yourselves with your Employer’s Workplace Policies and ensure that you comply, especially when there is a Zero Tolerance Policy in place.

(Article by Nichole Turner)

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