Alcoholism and the workplace

Nicolene Erasmus, André Claassen and Jan du Toit

Employees arriving at work with alcohol smelling on the breath, employees consuming alcohol during working hours, employees missing days (or even weeks) at work without justification, or with lame and feeble excuses (but never a medical certificate, or perhaps even with a medical certificate every time) and employees slipping out during lunch break “for a quick one” – all this seems to be a problem which is on the increase – with a resulting increase in problems for the employer.

The problem is not restricted only to alcohol; it extends to any substance having a narcotic producing effect. This type of behaviour constitutes misconduct – and all employers should have a company policy in place, that has been communicated to all employees, regulating the consumption of alcohol on company premises, and also off company premises, where it might impact adversely on the employer, the employee, or the employee’s ability to perform his / her duties.

 

If the employer has no such company policy in place, then that employer has a problem, namely that he cannot take disciplinary action against an employee for breaking a rule that does not exist. We accept that not every rule has to be reduced to writing, on the basis that some rules are so well known that they do not have to be put in writing. But it will greatly complicate matters if there are no such rules in the workplace, and it will make for much smoother sailing if the rules are in place.

 

The Alcohol Policy must be tailor made to suit each individual company – there is no “standard policy” for this type of thing. For example, the employer would need one set of rules applicable to employees engaged in hazardous occupation – truck drivers, machine or equipment operators, fork truck operators, crane drivers, and so on. The acceptable level of blood alcohol in such persons would be a much lower level than that which would be acceptable in an office worker.

 

Now before your start shouting “discrimination”, remember that the circumstances demand the approach. For example, an airline pilot who has consumed any alcohol at all in the 24 hour period preceding his next flight is prohibited from carrying out that duty, he is sent home.

 

An office worker who works for the same airline who has consumed alcohol in the 24 hour period preceding the next shift is not problem, and can attend his/her workplace duties. That is a fair discrimination. In the place of airline pilot substitute truck driver; if the truck driver arrives at work smelling of liquor and the employer allows him to drive and he kills somebody in an accident, the employer could easily be held liable because he gave the driver permission to drive.

 

The office worker who arrives at work smelling of liquor is another matter altogether he is not endangering life or limb by sitting at his desk and working albeit not at peak efficiency. So an alcohol policy can discriminate fairly between the rules for one class of employee and another class of employee.

 

If an employer has in place a policy that states that sleeping on duty is a dismissible offence, and the lady who makes the tea is caught sleeping on duty in the kitchen, it doubtful that the employer would successfully defend a claim of unfair dismissal brought by the employee. But if a security guard is caught sleeping on duty, the circumstances are altogether different, and dismissal would in all probability be justified.

Thus the employer must give careful thought to the design and content of his Alcohol Policy. The policy must also contain rules that regulate alcohol consumption off premises during working hours, such as with field sales reps, field technicians, even to the extent of regulating alcohol consumption by managers and executives – business lunches, on the golf course, and so on.

 

There may be some job categories that carry a high risk for alcohol abuse – such as in the hospitality industry such as barmen, waiters, wine stewards, and people working with alcoholic beverages every day as part of their duties. All these special considerations each require its own unique approach in formulating the rules and regulations, because each has its own unique set of circumstances.

 

Therefore management is responsible for compiling the Alcohol (& Drug Abuse) Policy and management are responsible to ensure that employees comply. By “management” we refer to every person in a supervisory position who has staff reporting to him.

 

The Policy must not be as strict as to make problem employees fearful of coming forward – such a policy will only serve to drive the problem drinkers underground – and this compounds the problem because besides being a problem drinker, the employee becomes a secret drinker as well.

 

If the employer wishes to address the problem effectively, then the formulation of the Policy is important and requires input from all levels of management, and a fair amount of policy content will be decided upon from the results of past experience in dealing with the problem.

 

38.1   The Occupational Health and Safety Act; General Regulations and the company policy

 

Section 2(a) of the above mentioned regulations state;

 

2A. Intoxication

 

1. Subject to the provisions of sub regulation (3), an 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.
2. Subject to the provisions of sub regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
3. An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.

 

From the general regulations above it is clear that there is a duty on employers to ensure that employees;

 

• who appears to be under the influence of intoxicating liquor or drugs are not allowed to work, enter or remain at the workplace;
• are not under the influence of intoxicating liquor or drugs at the workplace;
• do not have intoxicating liquor or drugs in their possession;
• do not offer intoxicating liquor or drugs to other employees.

In other words zero tolerance in that you may not even arrive at work smelling of alcohol that was consumed the night before. To be accused of “having presented for work after having consumed alcohol (or a substance having a narcotic producing affect), or with alcohol smelling on the breath”, the employee does not necessarily have to be plainly intoxicated. He need not necessarily have had to have consumed a sufficient quantity of alcohol so as to have placed him “over the legal limit”.

 

Being an act of misconduct, it is obvious that dismissal may result if the employee is found guilty after the employer has followed a fair procedure. Thus it is a serious matter and should be dealt with as such but employers are reminded that schedule 8 of the Labour Relations Act prescribes progressive discipline in order to correct that behaviour of the employee. It would therefore be unfair to dismiss an employee the first time he arrives at work smelling of alcohol after a long weekend.

 

A dismissal may be contemplated in instances where the employee consumes alcohol at the workplace or makes it available to colleagues during working hours, as for the rest we recommend progressive discipline in order to correct the behaviour of the employee. For some strange reason Commissioners very often do not share the passion of employers to have sober employees at the workplace.

 

38.2   Incapacity or misconduct

 

Schedule 8 of the Labour Relations Act further recommends that employers should treat situations where it is suspected or known that an employee is the dependent on intoxicating liquor or drugs as incapacity and not misconduct.

The policy (in terms of assistance, counselling, rehabilitation, etc) will only be applied to those employees who have (or who demonstrate that they have) a genuine desire to be helped, and where it can be reasonably concluded that the rehabilitation program will result in success for this employee.

 

In other words, the employer is not expected to “flog a dead horse.” If an employee undergoes the rehabilitation program as stated in the Alcohol Policy, and later reverts to the old habits, then the end of the road has been reached. The employer does not offer the program again; rather procedures are then followed to secure the fair dismissal of the employee.

 

Remember, the employer is not in the business of re-habilitating alcoholics, problem drinkers and drug addicts. The employer is only trying to assist those in his employ who have such problems, to the ultimate benefit of both parties.

 

It is a fact that most persons with such problems will usually, when confronted,  vehemently deny that it is a problem, they will be emphatic that they do not need assistance, and that they can stop any time they wish to. In such cases, the employer cannot force the employee to undergo rehabilitation but he can demand that, since the employee has affirmed that it is no problem and that he/she can stop the drinking (or drugging) immediately, the employee must then stop the habit immediately or undergo the rehabilitation program, or face dismissal.

 

It must be emphasized that there is no obligation the employer to offer assistance – the Code of Good Practice – Dismissal merely states that the employer should consider the matter.

 

Thus it is for the employer to decide – and generally, assistance will be offered only to those employees who demonstrate that there is a reasonable chance that rehabilitation will be successful, that the employee genuinely realizes that he has a problem and that he needs help.

 

Generally, if a person’s drinking habits causes an adverse effect on his home life, his work life (or both), then that person can be said to have a drinking problem. We are more concerned with the problem affecting the workplace and if the employee’s output in terms of quantity or quality is affected, or his attendance record in terms of frequent absenteeism deteriorates, or his use of sick leave (often one day at a time with no medical certificate produced) becomes more frequent, then there may be a problem.

 

There has been some argument on whether the problem is classed as misconduct in that the employee has broken a rule in the workplace or whether it is classed as incapacity in that the employee is incapable of performing his duties due to the alcohol problem. This is arguable and could be either.

 

The fact is that what the employer is faced with is a non-performing employee who has a problem that is seriously impacting adversely on the employer’s business, and which is costing the employer money.

 

The person with a drinking problem is an expert at hiding the problem and will go out of his way to “act sober”. He will be extremely co-operative, willing to undertake any task given to him, even if it is outside the general parameters of his job description. There will also be frequent absences from the work-station, with dozens of different excuses to justify this, weak bladder or bladder infection, upset stomach, bad headache, and so on. These absences are of course “drink breaks” or symptoms of overindulge the night before. Very often the problem is compounded because the employee’s immediate supervisor, while suspecting that “something is going on”, very often ignores his suspicions, overlooks (condones?) the frequent absences from the workstation, or even ignores the increasing absences from the workplace for a day or even 2 days at a time.

 

He also ignores other warning signals, that the employee’s absence always occurs on a Monday, and that he is never available for Saturday overtime. Another problem is that co-workers often will cover up for the errant employee making excuses for him when his absence is questioned by the supervisor and not realizing that by covering up they are in fact making his problem worse.

 

Whatever the case, the problem must not be overlooked. Further, it is one of those problems that cannot be treated gently; “I will have a chat with him” does not work. The problem is serious, and must be seriously addressed. There are a number of options open to the employer on how to address the issue, some of which may be straight disciplinary action, a written (or even final written) warning, or the employer may choose to follow a procedure of counselling, offering assistance to the employee, and so on.

 

Another perplexing aspect is that the problem may be caused, not so much by the employees drinking on the job or intoxication at work, but rather by drinking and intoxication off premises and outside of working hours, with the employee being stone cold sober during working hours.

 

So what do you do when you find that you have an employee who may be an alcoholic, but who certainly has a drinking problem which is affecting his work or the workplace?

 

Firstly, get as much information as possible from his supervisor, or line manager:

 

• how a long has the problem persisted?
• specifically in what way is it affecting the job processes?
• how frequently is he absent or late because of this problem?
• how frequently does he go off sick?

 

Build up all the information that you possibly can, and then write the employee a letter inviting him to attend a meeting to address issues regarding his performance. Remember this is not a disciplinary hearing; it is a case of incapacity (poor performance).

 

The meeting will be attended by the employee’s line manager or supervisor, and a senior manager to act as Chairperson. At the meeting, present to the employee all the facts that you have at your disposal. Discuss each one in turn, and explain how this is affecting his performance and the job processes in general. Keep careful and detailed notes of the proceedings.

 

The employee must explain why he is failing to achieve the required work performance standards and he must justify his absenteeism, late coming, and so on.

 

Eventually the discussion will turn to the drinking problem. Occasionally, the employee will admit straight out that he has a problem and that he needs help. Try to establish the reasons for the drinking. He may have financial problems, he may be involved in a messy divorce, children not doing well at school, illness of a loved one, anything like that or it may even be a work related problem.

 

Most often, the employee will deny that the drinking is a problem. The typical response is that “it is not a problem, sure I enjoy my odd drink or two after work, but I can stop any time I wish to”. If you get that sort of response, then you reply by stating “we are very pleased to hear that it is not a problem for you and that you can stop any time you wish to. We now require that you stop drinking immediately, and we require an immediate improvement in your attendance and late-coming”.

 

All of this must be carefully recorded, as well as details of what the employee has undertaken to do to fix the problem of his poor performance. This must be communicated to the employee in writing, together with a date by which he must comply with whatever has been agreed to, and a warning stating that should he fail to achieve the required work performance standard by (allow a reasonable time – say one month) then further procedures will follow which may lead to his dismissal.

 

Employers can seek the advice of organizations such as SANCA (The South African National Council on Alcoholism and Drug Addiction) or Alcoholics Anonymous or similar organizations, to gain advice and information on formulating a policy, the do’s and don’ts of handling alcoholism in the workplace, and so on.

 

It must be remembered that the employee’s family also plays a very big part in all this, and consultation (or counselling) with the employee’s spouse could well form a very big part in the process.

 

38.3   Alcohol in the workplace; when does misconduct become incapacity

 

In terms of the Occupational Health and Safety Act General Regulations, employers are responsible to ensure that employees that seem to be under the influence of an intoxicating substance, or consume such a substance in the workplace are not allowed on the premises of the company. Many employers, as a result of the mentioned regulations, implemented strict rules in the workplace dealing specifically with the use of alcohol (or any other intoxicating substances) and measures that may taken against offenders.

 

Examples of such rules could be that an employee may not consume any intoxicating substance prior to reporting for duty. As a result of this rule it would be an offence if an employee reported for duty with his or her breath smelling of alcohol. In terms of the company’s disciplinary code the employee may now be subjected to progressive disciplinary measures such as written warnings and ultimately the termination of the employment relationship.

 

In Transport and Allied Workers Union of South Africa obo Dabula / Algoa Bus Company (2013) 22 SARPBC 8.11.1, the applicant was dismissed for being under the influence of alcohol whilst on duty.

 

The results of a breathalyser test reflected a reading of 0.84 which implied a condition of 8 times the allowed limit of 0.10. The test was based on the alcohol content on his breath and not his blood. Despite agreeing to the reading, the applicant denied that he was under the influence of alcohol claiming he was fit to work, no corroborating evidence existed, no observations were made and the breathalyser was not reliable.

 

The company maintained a zero-tolerance policy regarding being under the influence of alcohol during working hours. The applicant was charged in accordance with the policy which had been consistently applied. The legal limit for alcohol on the breath was 0.10mg/thousand units of breath. The applicant registered a reading 8 times the norm of 0.10. The company norm, however, was zero. It was not the first time that the applicant was confronted with being under the influence. In September 2011, he was counselled having admitted having an alcohol problem but he refused any assistance, stating “he would be able to manage his problem on his own”.

 

The reading of 0.84 confirmed that was alcohol on his breath and not in his blood. The particular tester was designed to measure alcohol on the breath. No previous warning for alcohol related offences was issued to the applicant, except for the counselling. The applicant could not have been fit for work if he was 8 times over the legal limit. No direct observations were made by the tester. The applicant based his appeal on “desiring a second chance”.

 

The commissioner stated that employees can be dismissed if they consume alcohol to the extent that they are rendered unfit to perform their duties. Driving under the influence of alcohol contravened a cardinal rule of the respondent in this matter. Rules designed to discourage or prevent the abuse of alcohol during/before working hours assume several forms. Proof that the employee performs work in an area where a mishap could endanger himself, or others, or that the employee’s condition embarrassed the employer, will serve as aggravating factors.

 

The shear magnitude of the test result makes one whistle. If this is viewed against the policy of zero tolerance, the misconduct is gross. The policy referred to zero-tolerance during working hours – he exceeded the norm by far. This must imply that he was under the influence. The dismissal of the applicant was fair.

In Metal and Electrical Workers Union of South Africaobo Setshedi / Scaw SA (2012) 20 MEIBC 8.11. the applicant was dismissed for reporting for duty under the influence of alcohol. The applicant had used alcohol the previous day. On the day in question, he started work in the morning. According to his shift superintendent, Shongoane, he was found smelling of liquor just before 9am. His foreman, Matlala was instructed to take him to Shongoane’s office after tea at around 10:10am. After a discussion the three went to the front gate where the security official administered a breathalyser test. During the first test the applicant was not represented, but a second security officer was present. The test result was 0.06%. About 28 minutes later a second test was performed, in the presence of a representative, with the result 0.058%.

 

The rule was that a person could not work if the reading indicating blood alcohol level was in excess of 0.05%. The applicant was called to a disciplinary hearing to answer to the allegation of testing positive to alcohol with a reading above 0.05%.

 

During the opening discussions, the applicant admitted drinking alcohol the previous day and that the tests reflected his blood alcohol reading as over the limit. Later in the proceedings, however, the applicant questioned aspects around the testing, for example whether the security officer had been properly trained, why he was not represented when the first reading was taken, why the second reading was not taken within 15 minutes, etc. The commissioner was however not convinced that any of these issues are of much assistance to the applicant. The actual test readings were not disputed. He did not dispute that he could have smelled of liquor on the morning in question. The main bone of contention appears to be whether in the circumstances of this case dismissal was an appropriate and fair penalty.

 

The applicant had 32 years of service with the respondent company but not even that could prevent his dismissal. The commissioner stated that a precedent should not be created that for example if you have a clean record and long service you can expect to get away with breaking such an important and fundamental rule as a first offence. The respondent’s interest in maintaining the standard outweighs what could otherwise have been seen as mitigating factors on the side of the applicant. The dismissal of the applicant was fair.

 

It could however happen that an employee reports for duty quite frequently with the smell of alcohol on his / her breath, leading the employer to believe that the employee may have a dependency problem. In terms of item 10 of Schedule 8 of the Labour Relations Act alcoholism and drug abuse are considered to be forms of incapacity and should therefore not be dealt with in terms of the disciplinary code of the company. In such instances appropriate measures to address the situation will be counselling and rehabilitation. The employer will therefore have to actively attempt to assist the employee in overcoming his or her dependency problem and as a result it may be recommended that the employee participates in a rehabilitation programme.

 

The question that must now be answered is when does misconduct become incapacity in terms of the employee that constantly arrives at work either smelling of alcohol or that is actually under the influence thereof?

 

In Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 LC 1.25.1 an employee, Ms. Louw, was dismissed for arriving at work under the influence of alcohol in 2009. She was employed as a yard official, which involves marshalling and coupling of trains and her position is as such considered to be a safety critical position. Due to the nature of the work the offence of being under the influence of alcohol at work constitutes serious misconduct in terms of Transnet’s disciplinary code.

 

At the time of her dismissal she still had a valid final written warning on her file for arriving at work under the influence of alcohol. At the arbitration hearing SATAWU disputed both the procedural and substantive fairness of the employee’s dismissal in that, inter alia, the employee was not afforded rehabilitation in terms of Transnet’s Employee Assistance Program (“EAP”).

 

The Commissioner found that the chairperson of the enquiry was well versed with Transnet’s EAP as well as the employee’s personal problems. According to the Commissioner the Chairman could have recommended counselling as a form of action to address the employee’s misconduct. The Commissioner further reasoned that the employee’s final written warning was only four days away from expiring, indicating that she took the warning seriously and that because Louw was not allowed to work on that day, neither applicant nor Transnet’s passengers were placed in danger.

 

The Commissioner ordered reinstatement, one month’s salary as compensation and that Louw was to submit to rehabilitation in terms of the employer’s substance abuse policy and to comply with such policy.

 

Transnet took this on review to the Labour Court arguing that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings. According to Transnet the Commissioner failed to have regard for the principles distinguishing misconduct from incapacity and, more specifically, that the evidence and common cause facts were that the employee was not an alcoholic and did not suffer from alcoholism. Transnet further argued that the Commissioner exceeded his powers by making an award requiring Louw to submit to rehabilitation and to comply with the company policy. Such an award is not contemplated in the context of the powers afforded to Commissioners in determining a dismissal dispute.

 

Turning to the question whether Louw should have been dealt with in terms of Transnet’s disciplinary code or in terms of incapacity, Judge Steenkamp said that in terms of section 10(3) of the Code of Good Practice, alcoholism is specifically mentioned as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken to assist such employees.

 

“In fact, the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such.

 

Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The employee is not at fault for his / her behaviour and cannot be blamed for their disease and its impact on their behaviour, discipline would be inappropriate in the circumstances.

 

An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit.”.

 

Judge Steenkamp found that the Commissioner’s award that Louw was to submit to rehabilitation in terms of Transnet’s substance abuse policy and to comply with that policy was inconsistent with the proven facts that Louw was guilty of misconduct. The Commissioner made a decision that a reasonable decision-maker could not make. The award was set aside.

 

Employers are advised to introduce alcohol and substance abuse policies in the workplace as well as a basic Employee Assistance Program. In terms of such a policy employees may be disciplined for misconduct if they do not have a dependency problem; employees that do have a dependency problem will be dealt with and assisted in terms of the EAP. It is further recommended that employees who make themselves guilty of misconduct under this policy are asked, every time corrective measures are taken against the employee, whether they have a dependency problem. This way the employer will be able to show that the employee did not have a dependency problem and merely claimed to have problem in order to be saved from a dismissal for misconduct.