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Alcohol in the workplace: “above the limit” does not mean “under the

influence”
Advocate Nicolene Erasmus
Employers are often shocked when yet another dismissal of a drunken employee is found to be unfair by
the CCMA or a Bargaining Council. And they have more reason to be shocked when they hear that a
commissioner accepted that a truck driver (responsible for transporting fellow employees) was
intoxicated to some extent and caused a collision, but found that the prevention of alcohol abuse at work
was a management responsibility and that it was they who should ensure that employees were not able
to commence work if drunk. GIWUSA & another v VM Construction [1995] 9 BLLR 99 (IC)
Is it then at all possible to dismiss a drunken employee if he/she does not at least cause a serious
accident or even death? Fortunately the answer is “yes”.
The charge
Before charging an employee, employers should investigate and ensure that the charges are formulated
correctly. Is the employee drunk? Does the employee only smell of alcohol? Is he under the influence of
alcohol? If the breathalyser test results indicate that the employee “is above the limit”, that is what it
means: “above the limit” – which is not the same as being “drunk” or “under the influence”. This
difference was pointed out by commissioners and judges and the following cases serve as an example:
In the matter of Mokgatlhe / Xstrata South Africa (Pty) Ltd (Merafe Boshoek Works) [2011] 6 BALR 584
(MEIBC) an employee was found guilty of ”arriving for duty under the influence of an intoxicating
substance”. When tested, the breathalyser tests indicated that the alcohol content in the applicant’s blood
was the following:
 8:00am: 0.028%;
 8:20am: 0.021%;
 8:40am: 0.015%
The employer, who had a zero tolerance policy, dismissed the employee. The commissioner held that “to
prove to be under the influence of alcohol it must be shown that there was an impairment of the
employee’s faculties. The percentage of alcohol in the applicant’s blood was some margin below the legal
requirement of 0.05% to be able to drive a vehicle. The percentage of alcoholin the applicant’s blood was
rapidly declining during the testing period.
A breathalyser test is not definitive. Where the breathalyser test shows a low margin of alcohol content in
the blood such as incasu, it is required to substantiate the intoxication with corroboratory evidence such
as manner of speech, bloodshot eyes and unsteadiness, etc. No evidence was presented that a physical
test was conducted to determine if there was any impairment of the applicant’s faculties. It is accepted
that the respondent must adopt a policy of zero tolerance.
The policy of zero tolerance should however not lead to the termination of an employee’s services in all
circumstances specifically where it was not established that the employee was not able to execute his
duties.”
This position, namely that an employee would be “under the influence” if he was not able to perform his
tasks, was confirmed by the Labour Appeal Court in Tanker Services (Pty) Limited v Magudulela [1997]
12 BLLR 1552 (LAC).
“Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task
entrusted to him by an employer must depend on the nature of the task. A farm labourer may still be
able to work in the fields although he is too drunk to operate a tractor. Consumption of alcohol would
make an airline pilot unfit for his job long before it made him unfit to ride a bicycle. The question which I
should ask myself is, therefore, whether the respondent’s faculties were shown in all probability to have
been impaired to the extent that he could no longer properly perform the skilled, technically complex and
highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance.”
In the first case, the employee should have been charged with “arriving/reporting for duty with more
than 0% alcohol in your blood”.
Policies and disciplinary codes
If an employer has a zero tolerance alcohol policy, care must be taken to ensure that employees are
aware of the policy. The dismissal of a drunken employee may be found to be unfair if the employee
claims that he is not aware of such a policy. The employees affected by the rule, i.e. that employees
should not be intoxicated at work, must be properly informed that it is a work rule, they must know what
sanction they may face for breach of the rule and they must know when the rule becomes effective. The
rule against alcohol intake must also be clear and unambiguous for example that no-one may be
intoxicated (or drunk or under the influence) at work or no-one in specific work categories (for example
drivers) may have any alcohol in their blood while at work.
If the disciplinary code provides for the dismissal of an employee who reports for duty with more than
0% alcohol in his/her blood, the employer does not need to lead any evidence to prove that the
employee was drunk or intoxicated. However, the employer must then ensure that the person who
administered the test testifies during the disciplinary hearing.
The contract of employment
Despite our best attempts to advise and assist employers, employers may still find themselves in a
position where an alcohol related dismissal is found to be unfair because the employer failed to prove
that the employment relationship could not be expected to continue.
The best solution that I can think of is that employers insert a clause in their contracts of employment in
terms of which employees agree to be tested when so instructed by the employer. When employees then
refuse to undergo a breathalyser test, they are in breach of their contracts of employment – which is a
dismissible offence. . The employer then does not have to prove anything as far as the use of alcohol is
concerned. Unfortunately for some employers this advice may come too late, as their employees have
already signed their contracts when they were employed and will now refuse to sign additional clauses.
For more information contact Nicolene Erasmus - nicolene@labourguide.co.za