“The employer shall ensure, as far as is reasonably practicable, that all persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.” (Occupational Health and Safety Act)
The season of goodwill, holidays, celebrations, and year-end functions is upon us once again. And with it comes a timely reminder to employers that, while their “zero tolerance” alcohol-at-work policies may be key to maintaining health and safety in the workplace, they have their limits when it comes to disciplining offenders.
Two teaspoons of cough mixture
A forklift driver with an impeccable six-year record of service at a beverage manufacturer arrived an hour late for work, then failed a routine breathalyser test – routine in that all employees knew they would be tested on entering and leaving the factory.
He was adamant that he hadn’t been drinking but explained that he’d had some of his neighbour’s cough mixture the night before and another two teaspoons that morning, without knowing that it contained alcohol as he hadn’t read the label.
Critically, he didn’t smell of alcohol and displayed no visible signs of impairment or of being intoxicated.
Nevertheless, he was dismissed for gross misconduct on the grounds that he had breached his employer’s Alcohol, Drug and Substance Abuse Policy, which he knew about and which prohibits employees from having any intoxicating substances in their bloodstream during working hours. It further forbids them from using any alcohol during work or within six hours of the start of their shift. What’s more, it includes a zero-tolerance clause to the effect that no alcohol in an employee’s blood is permitted, and that higher levels of alcohol will automatically lead to a disciplinary hearing and possible dismissal.
The employee disputed his dismissal at the CCMA (Commission for Conciliation, Mediation and Arbitration) which found it to be substantively unfair and ordered his reinstatement with an award of R24,600 in lieu of arrear salary. This despite the employer’s explanation that a zero-tolerance approach was required because an employee working on machinery while under the influence posed a serious occupational and health risk.
The employer took the CCMA’s reinstatement award on review to the Labour Court, but it was unable to convince the Court that dismissal was justified. Its failure to do so holds valuable lessons for all employers and employees.
What must an employer prove to justify dismissal?
As an employer, your duty to ensure health and safety in the workplace may well call for a zero-tolerance policy against substance abuse, particularly in safety-sensitive situations like employees operating heavy machinery (the heavy-duty forklift in this case being a good example).
But a zero-tolerance policy “will only be accepted where the circumstances necessitate its implementation”. Even then, it doesn’t mean that you can automatically dismiss an employee contravening it. You have to go further.
You need to treat each case on its own merits, and be ready to justify whatever sanction you decide to impose by proving that:
- There was a workplace rule in place.
- The employee was aware of it. Ideally, you should educate staff on the importance of the policy with specific reference to the dangers of alcohol and other banned substances being present in food products, cooked foods, medicines and the like.
- The employee wilfully broke the rule.
- The nature and responsibilities of the job, the significance of the rule, the employee’s disciplinary record, the process of progressive discipline, and the potential harm caused by the misconduct (fitness for duty and threats to workplace safety would be major factors here) are all sufficient to show that dismissal is “appropriate and proportional to the offence that was committed”.
The employer’s challenge in this case was that it couldn’t prove that the forklift driver knew there was alcohol in the cough mixture, leading the arbitrator to accept his version that he had not knowingly breached the zero-tolerance rule. It was also unable to prove that the driver’s faculties had been impaired, an important factor in the arbitrator’s conclusion that dismissal was not an appropriate sanction here.
No doubt the employer’s case would have been stronger had its zero-tolerance rule specifically required employees to check for alcohol content in all medicines used – but even then, it would still have had to show overall fairness and proportionality.
Are zero-tolerance policies pointless?
Not at all. Our labour courts have previously upheld dismissals in similar cases. Every case is different, with each matter being a balancing act between the employer’s duty to ensure safety in the workplace on the one hand, and its duty to act fairly in enforcing its disciplinary policies on the other.
Bear in mind also that this Court was not “re-trying” the matter but only assessing whether or not the arbitrator’s decision could be considered reasonable in light of all the facts and evidence presented. Another arbitrator presented with a different set of facts could well have decided in the employer’s favour.
The fairness factor
Review your workplace policies and procedures to ensure that they are as tightly worded and as justifiable as possible, and bear in mind that, as the Labour Appeal Court has summarised the legal position, (emphasis supplied): “the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence … The touchstone of the law of dismissal is fairness and an employer cannot contract out of it.”
Employees: This is no “get out of jail free” card
One wonders how often the “cough mixture” defence has been tried both by employees breathalysed at work, and by late-night jollers pulled over at police roadblocks. Of course, it could get you off the hook, just as it did our forklift driver here, but don’t take a chance on it. And don’t unwittingly break the rules – check what’s in your medicines before you take them!
Our employment laws are complex and the penalties for getting them wrong substantial, so call us if you need any help in reviewing or enforcing your workplace policies.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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