Alcohol and Substance Abuse in the workplace

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Alcohol and substance abuse in the workplace is becoming increasingly common.

The obligation to ensure employees are not intoxicated while on duty is for the safety of the intoxicated employee as well as all other employees in the workplace. Intoxication is not only a safety concern, but also has the potential to cause reputational damage.

Employers are obliged to provide and maintain a safe and healthy working environment. To this end, section 8(1) of the Occupational Health and Safety Act, Act 58 of 1993 (OHSA), provides that “every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”

Alcohol and substance abuse in the workplace may, in many cases, be found to be a dismissible offence. Although this can be viewed to be an individual’s problem, it can also affect an employee’s performance at work resulting in absenteeism, accidents, illness, and mortality – all of which could add to the employer’s costs.

Employers should have a zero-tolerance alcohol and drug policy which clearly and accurately reflects the employer’s position. The policy should prohibit any trace of alcohol or drugs in an employee’s system when the employee reports for duty and/or performs his/her work. Even if the alcohol or drug is contained in medication.

The employer’s policy regarding alcohol or drug use while on duty, off duty, or before coming to work, must be very specific, unambiguous, and clear to employees that should the rule be contravened, what sanctions will then ensue.

Saying that, no matter the nature of the rule, the employer must prove the employee’s knowledge of the rule and that the rule has been contravened when taking disciplinary action for any contravention.

There are two significant challenges for employers wanting to dismiss employees for being under the influence of alcohol or drugs:

  • Firstly, there must be sufficient evidence that the employee is guilty of the charge; and
  • Secondly, if it is a first offence and the employee admits to having an addiction, the employer may be obliged to treat the addiction as a form of incapacity.

 

There are certain instances where employees raise the fact that they have an addiction to drugs or alcohol only at the disciplinary hearing. One needs to look at whether the employee disclosed this illness to the company previously, if not, why was it not disclosed to the company, and what steps the employee has taken to undergo treatment. Should an employee raise his illness as a defence to escape dismissal, the Chairperson may elect to proceed with the hearing and dismiss based on misconduct

In Ramoitshane/Dixon Batteries (Pty) Ltd (2009) 18 NBCCI, the employee was dismissed for being under the influence of alcohol because his eyes were bloodshot, and the fact that he arrived late for work. The employee contended that his eyes were bloodshot since he suffered from a chronic problem resulting in red eyes. The employee’s bloodshot eyes coupled with a previous warning for arriving at work under the influence of alcohol led the employer to believe that the employee was once more under the influence of alcohol and the employee was subsequently dismissed. The commissioner found it strange that the employer did not have any breathalyser tests available when the employee insisted on being tested and questioned the requirement of the zero-tolerance policy enforced by the employer if breathalyser tests were not even available when required. The commissioner also added that an employee that is under the influence of alcohol would not insist on being tested if he was indeed intoxicated. The dismissal was found to be substantively unfair, and the employee was reinstated with back pay.

In NUMSA obo Mbali and Schrader Automotive SA (Pty) Ltd (2005) (MEIBC) the employee arrived at work reeking of alcohol and his blood alcohol level registered 0.05% per 100ml. The employee was charged with and 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 21H00. Witnesses testified that the employee reeked of alcohol but did not exhibit any other signs of being under the influence of alcohol. The commissioner found the dismissal unfair and reinstated the employee, since the employer could not prove that the employee was under the influence of alcohol, or that the employee was unable to perform his normal duties as a result of being under the influence of alcohol.

Notably, breaches of some rules are easier to prove than others. A breach of a rule prohibiting possession of alcohol is proven by the mere possession. Whilst a rule prohibiting being under the influence of alcohol requires far less rigorous proof than a rule that prohibits being under the influence to the extent that the employee’s work performance is diminished. Therefore, employers should carefully consider what rules they require in their alcohol and drug policies.

When an employee arrives at work intoxicated

It is not sufficient for an employer to dismiss an employee on the basis that he/she arrived at work showing one or more of the common signs of intoxication. The common signs of intoxication exhibited by the employee should lead the employer to undertake the relevant tests to confirm whether the employee is indeed intoxicated.

The following may be indicative signs that an employee is under the influence of alcohol or drugs:

  • The smell of alcohol on the breath of an employee
  • Bloodshot eyes
  • Slurred speech
  • An employee being unsteady on his/her feet
  • Aggressive or confrontational behaviour
  • An employee turning his/her face away whilst being spoken to
  • Shielding the mouth with a hand when speaking
  • Unusually dishevelled appearance

 

(It is advisable to also complete an observation checklist indicating any of the above signs when conducting the relevant test).

The breathalyser and drug test can be carried out by an employer, at the workplace, or by a person who has been trained in the proper use of the instrument. The employee’s consent to undergo testing must be obtained in writing. The employee is entitled to the presence of a representative to witness the procedure (National Union of Metalworkers of South Africa obo Johnson/Trident Steel (Pty) Ltd [2013] 1 BALR 27 (MEIBC)). The employer is also entitled to the presence of a witness.

The employer should ensure that the breathalyser and drug test equipment is properly calibrated in the presence of the employee and his/her representative. In addition, the employer’s zero-tolerance policy must clearly state what level of intoxication, if any, will be allowed. Alternatively, the policy must state that even if the employee tests for an amount under the legal limit that he/she may face disciplinary action in terms of the employer’s substance abuse policy.

It is imperative that the manner in which the employer will address the results of the breathalyser and drug test is clearly dealt with in the substance abuse policy.

In Arangie and Abedare Cables (2007) 28 ILJ 249 (CCMA), the employee was aware of the employer’s policy which allowed for random alcohol testing when it appeared that employees may be under the influence of alcohol and if its employees refused to be tested, the employees had to leave the workplace. The employee refused to undergo the test or to leave the workplace. The employee was charged with insubordination, found guilty, and subsequently dismissed. The commissioner found that the employee had deliberately disobeyed the instructions given to him to take the test and to leave the premises, and that he was at the time, already on a written warning for insubordination. The commissioner found that the employee’s offence was sufficiently grave to render the continued employment relationship intolerable. Dismissal was found to be an appropriate sanction.

Cannabis in the workplace

Minister of Justice and Constitutional Development v Prince [2018] ZACC 30 is a decision of the Constitutional Court of South Africa delivered on 18 September 2018, which found that it is unconstitutional for the state to criminalise the possession, use, or cultivation of cannabis by adults for personal consumption in private.

While cannabis is legally capable of being consumed in private, employees can still be dismissed for misconduct.

The employer’s premises are not ‘private’. Employers may, therefore, implement rules that regulate the possession and use of dagga at the workplace. This may include implementing zero tolerance substance abuse policies despite the outcome of the Prince case. Whether or not this decision will be successfully appealed remains to be seen, so we should remain on high alert that this position may change in the near future.

In the recent case of Enever v Barloworld, a company had a long-standing zero tolerance substance abuse policy. There was a particular employee who regularly used cannabis, however, she always consumed cannabis outside of her working hours and away from the workplace. When the employee was tested in terms of the policy, the results showed that she had cannabis in her system. She was told to leave the premises and would not be granted access to her working premises until such time as she tested negative. However, seeing as though she was a regular user – the tests continued to return positive results. This led to the company dismissing the employee for the continuous breach of its substance abuse policy.

Subsequent thereto, the Labour Court was tasked with determining whether the dismissal amounted to an automatically unfair dismissal or whether the zero-tolerance substance abuse policy discriminated against her on arbitrary grounds.

The court took cognisance of the fact that the use of cannabis did not impair the employee’s ability to perform her work-related duties and that the employee had never been in possession of cannabis on the company premises.

Despite the above, and in reaching its decision, the court made the following pertinent points:

  • The employee’s performance was affected by her actions in that she was unfit to render her services, owing to the fact that she was instructed to leave the premises and could not return until a negative drug test was produced.
  • The General Safety Regulation 2A of the Occupational Health and Safety Act precluded employees under the influence of an intoxicating substance from entering the workplace; and
  • That the Prince case did not afford any protection to employees against disciplinary action should they act in contravention of company policies.

 

Both employees’ claims accordingly failed. Instead, the court held that it was an issue related to misconduct (of which the applicant was guilty) in that:

  • The employee had been aware of the rule at all material times.
  • The company applied the rule consistently, and
  • The employee breached the rule.

 

Employees should be aware of and ensure that they do not engage in any form of conduct which strictly breaches a workplace policy, since a breach thereof may lead to a dismissal. This remains the case even where employees exercise lawful rights and entitlements outside of the workplace and remain perfectly capable of performing their jobs.

The implications of the personal use of cannabis and its impact on the workplace were considered by the Commission for Conciliation, Mediation and Arbitration (CCMA) in the case of Mthembu & others v NCT Durban Wood Chips [2019] 4 BALR 369. The three applicants were among several employees who were dismissed after testing positive for cannabis during a test conducted during working hours. The applicants claimed that they had not smoked the drug during working hours.

The respondent claimed that due to the highly dangerous operations in its factory, it had a zero-tolerance approach to working under the influence of alcohol or drugs, of which the applicants were aware.

The Commissioner noted that the Constitutional Court had just declared private use of cannabis legal. However, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours. The respondent’s operations indicated that such a prohibition was reasonable, and the applicants knew that they were not allowed to report for work while under the influence of cannabis.

While the CCMA’s ruling gives guidance, it should not be used as a blanket justification for dismissing employees who test positive for cannabis. Employers should carefully consider how to regulate the use of cannabis in the workplace to best suit the nature of its business and operations and associated risks while respecting an employee’s constitutional right to use cannabis at home.

The mere presence of dagga will not be sufficient to prove that a person is under its influence. While its presence could be detected in a person for more than 14 days after use by standard urine test, it fails to pinpoint the time of use to link the substance with the individual being intoxicated in the workplace.

Whether employers can act against someone for allegedly being under the influence of dagga will depend on whether the substance is still affecting the employee’s ability to function and perform normally.

Any policy aimed at addressing specifically the use of cannabis and its effects in the workplace, would have to consider factors such as consent to testing for cannabis, the manner of testing, the nature of the employer’s business, the employee’s duties, the circumstances in which the offence was committed, the observable extent of the impairment, and the employee’s history of cannabis or other drug-related offences at work.

If an employee has legitimate medical reasons, they should engage with their employer, produce evidence that substantiates their condition and determine if the use of cannabis would oppose the employer’s operational constraints or policies

Dealing with addiction in the workplace – Incapacity or Misconduct

It is important that an employee with an addiction is treated as any other individual who has a medical problem, and that no victimisation or segregation of such persons be allowed in the workplace.

If an employee tells the employer that they are suffering from an addiction, the company should take steps to help the employee resolve their addiction problem before they can proceed with dismissal. Legislation doesn’t stipulate that the employer must pay for the rehabilitation process but should consider the steps to be taken.

Schedule 8 of the Labour Relations Act recommends that employers should treat situations where it is suspected or known that an employee is dependent on intoxicating liquor or drugs as incapacity and not misconduct. It must be emphasized that there is no obligation on the employer to help – the Code of Good Practice: Dismissal merely states that the employer should consider the matter.

Thus, it is for the employer to decide, and generally, assistance will be offered only to those employees who demonstrate that there is a reasonable chance that rehabilitation will be successful, that the employee genuinely realizes that he has a problem and that he needs help.

One cannot force an employee to undergo rehabilitation, but you can demand that, since the employee has affirmed that it is no problem and that he/she can stop the drinking (or drugging), the employee must then stop the habit immediately or undergo the rehabilitation program, or face dismissal.

If an employee undergoes the rehabilitation program and later reverts to old habits, the employer does not have to offer the program again; rather, procedures are then followed to secure the fair dismissal of the employee.

For the following reasons, employers are obliged to take a tough line and adopt a zero-tolerance approach and treat the offence as one for which dismissal may result:

  • The General Safety Regulations made in terms of the Occupational Health and Safety Act 85 of 1993 (OHSA) that provides that no person shall have drugs in their possession at work.
  • Section 23(3) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 provides that, if a workplace accident is caused due to the serious and willful misconduct of the employee (which includes being under the influence of intoxicating liquor or a drug having a narcotic effect), no compensation will be payable (unless the employee is serious disabled or dies as a result).

 

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