Alcoholism, Workplace and Employer policy

SHARE   |   Monday, 16 November 2015   |   By Isang Lekhutile
Alcoholism in the workplace is prohibited Alcoholism in the workplace is prohibited

I came across a Court judgement the other day which really caused me concern. It dealt with the matter Astore Africa (Pty) Ltd v CCMA & others [2008] 1 BLLR 14 (LC) where an employer dismissed an employee (a truck driver) for being drunk on duty, and the CCMA at arbitration ordered reinstatement of the employee, stating that the employer had failed to prove that the driver was incapable of driving. This immediately brings to mind - at least, to my mind anyway, further very important questions.

Firstly, what standards must an employer apply in order to test whether or not an employee, who is under the influence of alcohol, is capable or incapable of performing his duties? We all know that the legal limit in terms of the Botswana Road Traffic Act(S.46) is 0,22.So does this mean that if your truck driver gives a reading of 0,49 on your breathalyzer, that you must will allow him to drive a truck, a forklift, operate an overhead crane, and so on ? What happens if you allow such a person to drive your truck, and causes an accident. Who is liable ? Are you, the employer, liable - because you told him that despite the fact that he had consumed liquor, he was under the legal limit and could therefore drive?

My view is - not at all!! Firstly, all employers must have a written Alcohol and Drug Abuse Policy in place. It is not clear from the judgement in the case mentioned above whether or not this employer did have such a policy. In my view, it is essential for employers to have such a policy - and the policy must state that the employer's rule is " Zero tolerance." The policy must clearly stipulate what the testing procedure shall be. For example, before the test procedure commences, the employee is entitled to have a representative to assist him, and the employer will also have a representative present as a witness. The test procedure will require the employee to blow on a reliable and properly calibrated breathalyzer, preferably one which also measures the blood alcohol content as well as the alcohol content on the breath.
 
The policy must state that employees who are suspected of having consumed alcoholic liquor or drugs will be required to undergo the breathalyser test. Note will be taken of the employees appearance, bloodshot eyes, slurred speech, attitude - aggressive or abusive - and the employee will be required to walk a white line painted on the floor with his arms held out horizontally. Any of these issues which bring a negative result, count against the employee and constitutes circumstantial evidence which entitles you to reach a logical conclusion that the employee has been consuming or appears to have consumed alcoholic liquor or drugs.

The policy must state that the breathalyser will be calibrated in the presence of the employee and his representative, in order to avoid any arguments regarding the accuracy of the instrument. Employers must also incorporate into the policy the provisions of legislations. For example Mines, Quarries, Works and Machinery Act 44:02 in particular general safety regulation section 32, which addresses the issue of intoxication. It is advisable for employers to states in their policy that "any employer or a user, as the case may be, shall not permit any person who is, or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace. The policy can go further to state that no person at a workplace shall be under the influence of, or have in his or her possession, or partake of or offer to any other person intoxicatingly go or drugs.

This means that if an employee who is under the influence of alcoholic liquor or drugs, or who appears to be under the influence of alcoholic liquor or drugs, arrives at the work premises, the employer is legally obliged to refuse him entry to the premises. The words in this safety regulation "or who appears to be" vitally important. The testing procedure outlined above, if producing a negative result, will entitle the employer to conclude "this employee appears to be under the influence of alcoholic liquor or drugs - therefore I will not allow him entry to the premises."

The breathalyser test result, whether above or below 0.05, will enable the employer to state " our limit is zero tolerance. Therefore, in terms of our limit and policy, this employee may not work." The Labour Court found that the Commissioner's decision that the employer had failed to prove that the employee was unable to do these duties, was a rational and justifiable decision on the part of the Commissioner. The Commissioner at the CCMA concluded (correctly, according to the Labour Court ) that there was no evidence that the employee's ability to perform his duties had been impaired by the consumption of alcohol.

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Just how much more scientific evidence is needed - from dozens of different sources available to anybody on the Internet - to show that the consumption of alcohol impairs the judgement, the reflexes and the reactions of the person who has been consuming the liquor?? Surely employers do not have to back up their decisions in such matters with scientific evidence? Surely, the onus lies with the employee to prove beyond reasonable doubt that there is a case to answer. Employers policy on alcohol should states quite clearly that if a person appears to have consumed alcoholic liquor or drugs, the employer may not allow that person to enter the premises. This therefore means, in very clear terms, that if a person appears to be under the influence of alcoholic liquor or drugs, the employer may not allow him to enter the premises to carry out his duties. In my view, very simple.

It is not a question of whether the amount of liquor consumed or the degree of drunkenness is sufficient to cause the employee to be incapable of carrying out his duties. The question is - if he has consumed or appears to have consumed alcoholic liquor or drugs (in any quantity ) he may not enter the premises. It merely says " if he has consumed or appears to have consumed " then he may not enter the premises or remain on the premises. And that, in my view, is the end of the matter.