• Latest
  • Trending
  • All
  • News
  • Business
  • Politics
  • Science
  • World
  • Lifestyle
  • Tech

Drunk enough to be dismissed?

August 26, 2016
Health and Safety in African Mining

Health and Safety in African Mining

June 9, 2023
Shareholders Plan Legal Action Against Mining Company For Unethical Chrome Sale

Shareholders Plan Legal Action Against Mining Company For Unethical Chrome Sale

April 29, 2023
advertisement
ADVERTISEMENT
B.E.D. Cape Town Branch: Consistency, Customer Service and Teamwork

B.E.D. Cape Town Branch: Consistency, Customer Service and Teamwork

April 29, 2023
Armcoil and Schneider Electric Partner to Deliver SKID Substations to Prominent Mining Group

Armcoil and Schneider Electric Partner to Deliver SKID Substations to Prominent Mining Group

April 29, 2023
Zest WEG’s Expanded Middelburg Branch – Improving Services and Delivery for Customers

Zest WEG’s Expanded Middelburg Branch – Improving Services and Delivery for Customers

April 29, 2023
Clear Gear™ Lubricant Sets a New Benchmark for Reliability in Mining

Clear Gear™ Lubricant Sets a New Benchmark for Reliability in Mining

April 30, 2023
The Agreement to Sell Three of Sappi’s European Graphic Paper Mills to the Aurelius Group Lapses

The Agreement to Sell Three of Sappi’s European Graphic Paper Mills to the Aurelius Group Lapses

April 29, 2023
One Platform to Rule All: Guanajuato Silver Selects Micromine

One Platform to Rule All: Guanajuato Silver Selects Micromine

April 29, 2023
Unlocking Value From Data To Drive Better Business Results

Unlocking Value From Data To Drive Better Business Results

June 6, 2023
Global Energy Leaders Named in Africa Oil Week Advisory Committee

Global Energy Leaders Named in Africa Oil Week Advisory Committee

April 29, 2023
Sappi’s Platinum Sustainability Status Is Once Again Verified by EcoVadis

Sappi’s Platinum Sustainability Status Is Once Again Verified by EcoVadis

April 25, 2023
Rosond Appoints Geotechnical Project Coordinator

Rosond Appoints Geotechnical Project Coordinator

April 25, 2023
  • African Mining Brief
  • Magazine Archive
  • Contacts
Saturday, June 10, 2023
African Mining Brief
No Result
View All Result
  • Login
  • Home
  • News
  • Events
  • Industry
  • People
  • Projects
  • Press Releases
  • Magazine Archive
MAGAZINE ARCHIVE
ADVERTISE
  • Home
  • News
  • Events
  • Industry
  • People
  • Projects
  • Press Releases
  • Magazine Archive
No Result
View All Result
African Mining Brief
No Result
View All Result
  • Home
  • News
  • Events
  • Industry
  • People
  • Projects
  • Press Releases
  • Magazine Archive
Home Legal News

Drunk enough to be dismissed?

by Newton Mthethwa
August 26, 2016
in Legal News, Occupational Health and Safety, Opinions, Substance abuse
0
492
SHARES
1.4k
VIEWS
Share on FacebookShare on Twitter

By Hugo Pienaar and Elizabeth Sonnekus, Cliffe Dekker Hofmeyr

One would think that if an employee is found to be under the influence of alcohol at work it is a straightforward dismissible offence. Recent case law has shown that this is not necessarily so. Employers often operate under the mistaken belief that testing positive for alcohol equates to the employee being under the influence of alcohol.

Alcohol and drug abuse is a form of misconduct. Schedule 8 of the Code of Good Practice of the Labour Relations Act, No 66 of 1995 (LRA) recognises misconduct by an employee as a fair reason for dismissal.

There are two scenarios in which an employee may be charged for their use of alcohol at the workplace:

The first scenario is where the employee’s drunkenness can be proven by sight, smell and/or the conduct of the employee. Factors showing drunkenness include aggressive behaviour from the employee, slurred speech and bloodshot eyes. The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes.

The second scenario is where an employee tests positive for alcohol on a breathalyser apparatus. A positive outcome does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired. Employers often mistakenly believe that a positive test result is sufficient proof to show that the employee was under the influence of alcohol and then mistakenly charge the employee for being under the influence of alcohol. Recent case law has confirmed that a positive test result is not necessarily sufficient to dismiss an employee. In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC) the Labour Court found that a positive test result on a breathalyser test is not sufficient proof to indicate that the employee was under the influence of alcohol. The court referred to Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC) which stated that the real test is whether the employee’s competence to perform their work has been impaired. In this case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.

What should an employer do?

  • The employer should adopt a zero tolerance in terms of its alcohol policy in the workplace. Such policy should be specific and also provide for a summary dismissal, even when the employee has just been tested positive for the use of alcohol or drugs. The rational for such policy should be based on the safety considerations of the employer. This means that an employee may be summarily dismissed irrespective of whether his/her ability to work is impaired or not. To adopt such a policy depends on the status thereof and may sometimes simply require consulting with the employees before the implementation of such policy. The employer should always ensure that all employees are aware that there is a zero tolerance policy and that if they test positive for any usage of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.
  • In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly. The test should also always be done in the presence of a witness.
  • However where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work was impaired – if that was indeed the case.
  • If it emerges that an employee is dependent on alcohol the employer has an obligation to consider providing counselling and assist the employee as is set out in item 10 of Schedule 8 of the LRA.
Tags: Alcohol and drug abuseCliffe Dekker HofmeyrHugo Pienaar and Elizabeth SonnekusThe Labour Court
Share197Tweet123
Newton Mthethwa

Newton Mthethwa

Jan - March 2023 Magazine

Health and Safety in African Mining

Health and Safety in African Mining

June 9, 2023
Shareholders Plan Legal Action Against Mining Company For Unethical Chrome Sale

Shareholders Plan Legal Action Against Mining Company For Unethical Chrome Sale

April 29, 2023
B.E.D. Cape Town Branch: Consistency, Customer Service and Teamwork

B.E.D. Cape Town Branch: Consistency, Customer Service and Teamwork

April 29, 2023

Trending News

  • Business Maverick Zunaid Moti Announces Departure from Moti Group

    Business Maverick Zunaid Moti Announces Departure from Moti Group

    1056 shares
    Share 422 Tweet 264
  • Scraper Winch

    692 shares
    Share 277 Tweet 173
  • Thyssenkrupp Uhde Expertise Extends the Life of Ammonia Tanks

    636 shares
    Share 254 Tweet 159
  • Slope Stability

    618 shares
    Share 247 Tweet 155
  • Underground Support Systems

    599 shares
    Share 240 Tweet 150
  • Another successful turnkey modular construction and transit solution from thyssenkrupp Uhde delivered to a key customer

    597 shares
    Share 239 Tweet 149
  • African Mining Brief
  • Magazine Archive
  • Contacts

© 2023 African Mining Brief I All Rights Reserved Powered by Clivo.

No Result
View All Result
  • Home
  • News
  • Events
  • Industry
  • People
  • Projects
  • Press Releases
  • Magazine Archive

© 2023 African Mining Brief I All Rights Reserved Powered by Clivo.

Welcome Back!

Login to your account below

Forgotten Password?

Retrieve your password

Please enter your username or email address to reset your password.

Log In