Written by: Samantha Moodley

This is the one of the most commonly encountered problems within the workplace. Despite this, there still remain grey areas in respect of how the matter should be treated. Is it incapacity, misconduct or both?

Companies generally have their own internal policies in terms of how these issues will be dealt with. However, these policies must be in accordance with and are subject to the relevant and current legal principles. Employers need to not only ensure their policies are legally compliant, they also need to ensure that they comply with these policies in handling such matters in a consistent manner.

Regulation 2A of the Occupational Health and Safety Act 85 of 1993 (“OHSA”), states that employers 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.

What does it mean to be ‘under the influence of intoxicating liquor’ or intoxicated? The simple consumption of alcohol alone does not lead to intoxication. The legal limit for driving after having consumed alcohol is 0.24mg per 1000ml for breath alcohol content and 0.05g per 100ml for blood alcohol content. Whilst a person is unlikely to be charged for ‘driving under the influence’ if found to be driving with the aforementioned quantities of alcohol in your system, this does not mean that they are not intoxicated. A person is deemed to suffer alcohol intoxication when the quantity of alcohol causes behavioural, mental or physical impairment until such time as they have recovered from the effects of the intoxication. This differs from person to person and depends on certain factors such as physical build, fat content, tolerance for alcohol, etc.

What level of breath or blood alcohol content is acceptable in the workplace? We advise that Companies should adopt a zero tolerance attitude towards any positive reading for breath or blood alcohol levels once the reading has been confirmed and this must be incorporated into their policies. It is far too onerous to determine what levels are permissible and at what stage it begins to become intoxication and causes impairment. This will open up the floodgates to abuse of the system and potentially lead to problems within the workplace in terms of performance, consistency in application of the rule bearing in mind that the same quantity of alcohol may not have the same effect on different people and may pose a serious safety risk.

When should alcohol in the workplace be treated as misconduct and when should it be treated as medical incapacity?
In the recent case of Superstone Mining (Pty) Ltd v Kuebo and others (10 September 2013) (unreported), the Company had a zero tolerance policy towards alcohol and drug abuse and accordingly charged and dismissed an employee for being under the influence whilst at work. The matter was referred to the CCMA where the dismissal was found to be unfair as the employee disclosed during the disciplinary enquiry that he had an alcohol dependency problem. The matter was thereafter taken on review to the Labour Court. The Court found that in cases where Companies have policies in place, the obligation lies with the employee to disclose his alcohol dependency to the workplace and seek their assistance in terms of the policy. The Court further found that where there is no evidence of such incapacity, the Employer is under no obligation to treat any alcohol related misconduct as an incapacity case and emphasised the need for safety in the workplace.

Based on the above, it is evident that there is no obligation on the employer to treat any incidents of alcohol abuse as incapacity unless the employee approaches the employer for assistance in this regard. Unless your Company policy states otherwise, an employee can be charged for misconduct even for a first instance where they are found to be at work or attempting to enter the work premises with a positive breath or blood alcohol reading.

Should the employee approach the employer and request assistance in this regard or even where they test positive and immediately admit to having a problem before they are actually charged and put through an enquiry, the employer should provide assistance to the employee. Unless your Company policy determines that the employer will bear the cost of a rehabilitation facility, there is no obligation on the employer to do so. It will be sufficient if the employer allows the employee time off from work to attend a period of rehabilitation as well as time off to attend subsequent counselling sessions for a specified period. This is generally only applicable for the first incident. Any further incidents that take place, after the employer has provided this assistance, may be dealt with as misconduct.

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