Case Law Review: Alcohol – Failure to show Incapable of Duties

Welcome Effective Harmony followers and welcome to this week’s edition of It’s Case Law Review. Today we are asking the question, what must a company do if an employee pitched up under the influence of alcohol and maybe there was a breathalyzer test and there’s a negative reading indicating alcohol in the breath or a blood test was done and there was alcohol in the blood. Should an employer simply subject an employee to a discipline inquiry and dismiss on the first instance or not?

Common Misconceptions About Alcohol Policies in the Workplace

I have found over many years dealing with labor law that employers typically, mostly, if an employee picks up either under the influence or just having alcohol in the system, that on the first instance, because they have a zero tolerance policy, that they will end up dismissing the employee. But what is the correct way of how to deal with this? We are looking at a case in Ghani versus AECI Animal Health. And in this case was an arbitration that occurred in the Chemical Industry Bargaining Council.

Understanding the Case Background

Now, in this instance, this employee was employed as a warehouse assistant. They have two sections that the place of work. The one is the office building where you have the office and administrative staff, but secondly, you have the actual warehouse where there are dangerous equipment. And also, you know, he was a warehouse assistant, mainly being responsible for packing and wrapping merchandise and so forth.

But occasionally, he will also be driving a forklift. And of course, if you are under the influence of alcohol, you know, there’s an element of risk involved. when you drive a forklift under the influence of alcohol. Keeping in mind that in terms of the Occupational Health and Safety Act, an employer does have a responsibility and duty to ensure there’s a safe working environment for all employees, but also for other third party people like clients and suppliers and so on and so forth.

What Happened During the Breathalyzer Testing?

But interestingly, in this case, the employee arrived at work and he was subjected to a breathalyzer test. Now, there was a rule in the company. It could be demonstrated in arbitration that there was various meetings held where the zero tolerance policy was explained. And during the COVID period, the employers ceased from using breathalyzer tests because of the COVID-19 regulations.

But recently, they reintroduced the use of breathalyzer tests and the staff was explained and the employee was duly aware that the company’s got a zero tolerance policy. So on this given day, the employee pitched up at work and you are subjected to a breathalyzer test and the reading came to 0.09%, tested positive for alcohol in the system, and they tested him an hour later and the reading was reduced and lowered to 0.07. The employee was then sent home, he cannot continue working and then was subjected to a disciplinary inquiry and then he was subsequently dismissed. The employee then filed an unfair dismissal dispute to the bargaining council.

The Commissioner’s Findings

Ultimately, the bargaining council found that the dismissal was too harsh. The commissioner agreed that the employee was guilty, that first of all, in terms of Schedule 8-7 of the Code of Good Practice, there was a rule in place. They’re not allowed to have or come to work under the influence of alcohol. The company’s got a zero-tolerance policy.

They had numerous meetings, and the employee was indeed aware of the dangers associated with the work, with the warehouse. and that he cannot come to work under the influence of alcohol. In addition, the company’s disciplinary code draw a bit of a distinction between office staff, administration staff, and warehouse staff. Administration staff, on the first offense, it will justify a final warning, but for warehouse staff, a dismissal on the first instance.

Why Was Dismissal Considered Too Harsh?

But the commissioner found the dismissal to be harsh. He found the employee guilty, but he said the employee should have given or received a final warning. Why? He alluded to and depended on a Labour Appeal Court case, the National Union of Metal Workers of South Africa versus Tremtire, where the Labour Appeal Court basically stated that regarding the laws of intoxication, and being under the influence of alcohol.

Our law generally states as follows. 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 a dismissal. You see a lot of employers, you know, if you are under the influence of alcohol or are intoxicated, that’s it. On the first instance, you’ll be dismissed.

Legal Principles on Progressive Discipline

The court continued by saying 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 any other relevant factor.

And these are the general principles that applies to the substantive fairness of a dismissal. So it’s not automatic that just because you intoxicated, now you must be dismissed. You must still look at the totality of the circumstances. You must still look at progressive discipline.

You must still look at to what extent or to the level of intoxication. You must still look at the length of service of the employee. what was the prejudice to the company and any other relevant factors. What’s also interesting is the commission also depended on tanker services versus Magdudulela, which was also a labour appeal court case and is actually known as the tanker case.

The Critical “Inability to Perform Tasks” Test

Here the court said that the employee It was found that employee guilty of being under the influence of alcohol were not able to perform tasks entrusted to him with the skill expected of a sober person. Whether an employee is unable to perform such tasks depends on its own nature. And this is basically why the company lost the case at the bargain council. They could not demonstrate that the employee was unable to perform his task because the reality of the matter is he was a backer.

His job title was a warehouse assistant, but it was mostly packing merchandise. And only occasionally, like maybe one day a week, he’ll be driving a forklift. So they could not really demonstrate that he could not perform his task on that given day. Now, I’m not saying that simply because a person cannot perform his task on a day that now you can dismiss him.

What I’m saying is that these are one of the key elements and factors to take into consideration. But in this case, the employee had a clean record. He’s been working for the employer for two years. There was really no reason why to dismiss on the first instance.

A final written warning would have been more suitable because clearly this employee can probably be corrected in terms of his misconduct and commitment. So there you have it for this week. It is not to say that an employer must simply dismiss an employee on the first instance, as that could, as been demonstrated, leave the employer in trouble at the CCMA or the bargaining council during arbitration process.

Key Takeaways

• Zero-tolerance policies don’t automatically justify dismissal on first offense
• Each case must be judged on its specific merits and circumstances
• Employers must prove the employee was unable to perform their duties
• Progressive discipline should be the general approach in most cases
• Factors like job function, length of service, and disciplinary record are crucial considerations
• The Ghani v AECI case demonstrates that failing to consider these factors can result in unfair dismissal findings
• Consistent application of disciplinary measures is essential for workplace fairness