When it comes to being under the influence of alcohol in the workplace, the mistaken assumption by employers is often that it is a straightforward dismissible offence. However, testing positive for alcohol does not necessarily mean that the employee is under the influence of alcohol. Also, while 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, it may not automatically warrant a dismissal.
This remains a problem for employers, as those who adopt a rigid zero-tolerance policy to intoxication while on duty are often subjected to unfair dismissal rulings from the CCMA. Ultimately, the issue comes down to whether the charge of ‘drunk on duty’ takes the form of misconduct or incapacity, because testing positive for alcohol does not constitute prima facie proof of being drunk.
Testing for alcohol intoxication
There are two ways to make a case for alcohol intoxication:
1. Eye-witness testimony
An employee’s state of inebriation can be proven through observation of the employee by co-employees or senior employees of the employer. No expert witness is required for such purposes. This can include:
- visual indicators (e.g. red eyes, poor balance and stumbling),
- auditory indicators (e.g. slurred speech),
- olfactory indicators (e.g. smells of alcohol), and/or
- employee conduct (e.g. sleeping, aggressive behaviour).
2. Medical tests
An employee tests positive for alcohol on a breathalyser or similar device, alternatively through blood testing. All 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.
However, 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 thus on the employer to prove that the employee is or was incapable of performing his or her duties on a balance of probabilities.
Case law examples
Overall, the courts consider the appropriateness of a dismissal based on all the surrounding circumstances of each case. The evidence required to prove that a person has infringed a rule relating to the consumption of alcohol depends on the offence with which the employee is charged. If employees are charged with being under the influence, the evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. Whether employees are unable to perform their work depends to some extent on its nature. If it emerges that an employee has an alcohol dependency, the employer has an obligation to consider providing counselling and to assist the employee as set out in item 10 of Schedule 8 of the LRA.
Tosca Labs v CCMA 2012 33 ILJ 1738 (LC)
The Labour Court found that a positive test result on a breathalyser test was 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 key determination is whether the employee’s competence to perform their work has been impaired or not.
South African Transport Allied Workers’ Union obo Mmotong v Staffing Logistics  1 BALR 26 (NBCRFLI)
The commissioner found that the employer did not discharge the onus and that the dismissal was substantively fair. In particular, the fact that the existence of the zero-tolerance policy was disputed.
South African Breweries Ltd v CCMA and Others (C 665/2011)  ZALCCT 17
The Labour Court set out factors in determining whether dismissal is appropriate, which included:
- 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 matter, the Arbitrator found that although the employee breached a 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.
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.”
Tanker Services (Pty) Ltd v Magudulela (1997) 12 BLLR 1552 LAC
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 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.
NUMSA obo Davids vs Bosal Africa (Pty) Ltd
The employee tested positive, however, they had been operating a heavy crane sometime before 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.
NUMSA obo Motsele vs Haggie Wire and Strand 2006, 2 BALR 163
The employee 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; and
- the employer is entitled to set standards of conduct that arbitrators should not lightly interfere with.
The arbitrator found that the employee’s conduct rendered the continuation of the employment relationship intolerable.
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (C24/2011)  ZALCCT 18
The Labour Court found the arbitrator’s decision reasonable:
“I find this approach to be unfair. A clerk, for example, would not be a danger to himself or 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.”
So, the pre-requisite for harm is not always relied on.
What should employers do?
Employers must remain cognisant that the onus lies with them to show that an employee was intoxicated, and the potential harm must outweigh the corrective disciplinary action. Should an employer adopt a zero-tolerance policy towards alcohol in the workplace, such a policy should be very specific and have a rationale based on the safety considerations of the employer.
It should also provide for a summary dismissal even if the employee has only tested positive for the use of alcohol. This means that an employee may be summarily dismissed, irrespective of whether his or her ability to work is impaired or not, because the employee is effectively in breach of policy.
The adoption of such a policy depends on its status and may sometimes simply require consulting with employees before implementation. Employers should always ensure that all employees are aware that there is a zero-tolerance policy and that if they test positive for any use 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, it remains crucial to obtain evidence, where possible and applicable, to show that the employee’s ability to work is or was impaired at the time.