Reporting for duty while under the influence of alcohol

Jul 14, 2010

Articles

It is not uncommon for employees to report for duty while under the influence of
alcohol. In dealing with this issue, employers should distinguish between three
situations: employees who are under the influence of alcohol when reporting for duty
(i.e., intoxicated); those who consume alcohol while on duty; and those who have a
blood-alcohol level in excess of the legal driving limit when reporting for duty.

Whether or not alcohol related transgressions justify dismissal depends not only on
the nature of the transgression, but also on the circumstances of each case. These
include the type of business conducted by the employer, the position or function of
the employee and the provisions of the employer’s disciplinary code or policy. For
example, consumption of alcohol while at work and on duty is normally regarded as a
serious offence, which may result in dismissal. Yet there may be mitigating factors,
e.g., alcohol dependency, that necessitates corrective discipline rather than dismissal.
On the other hand, an employee who is caught reporting for duty while under the
influence of alcohol probably would ordinarily not deserve dismissal for a first
transgression. Nevertheless, if the person also behaves in a manner that causes
harm to others, dismissal may well be warranted.

Employers must also distinguish between employees who are under the influence of
alcohol (i.e., intoxicated) and those who simply have a blood-alcohol level above a
certain limit, usually the legal limit for driving different types of vehicles. The fact that
someone’s blood alcohol level exceeds the legal limit does not of itself mean that the
person is necessarily under the influence. A company driver who is caught driving a
company vehicle or machinery while over the legal limit certainly should be
disciplined and may, in appropriate circumstances, also be dismissed. However, the
allegation against the person should be that he/she allegedly drove a vehicle, or
operated a machine, with too high a blood-alcohol level, not that he/she was under
the influence. The latter allegation can only stick where there is evidence of alcohol in
the employee’s system (e.g., through observation, or a test) and evidence that the
person’s behaviour or performance was affected as a result.

Merely smelling of alcohol, while not actually being under the influence thereof, is not
as a general rule regarded as a disciplinary offence, unless, once again, the
employer’s disciplinary code or policy stipulates otherwise, or the person is, for
example, required to interact with other people (customers, students, colleagues, etc.)
on a daily and regular basis. The employer will have to clearly stipulate that smelling
of alcohol is not permitted and spell out a possible sanction in its disciplinary code.

An important question is how employers can establish whether an employee is under
the influence of alcohol (intoxicated) or whether there is alcohol in the employee’s
blood, although he/she is not necessarily intoxicated? There are three ways in which
to do this, i.e., subject an employee to a breathalyser test; subject an employee to a
blood test; or conduct a visual observation of the employee in the presence of a
witness. While an observation does not require the employee’s consent, testing him
or her does. If provided for in the employer’s disciplinary code, the refusal to undergo
a test when there is a reasonable suspicion that a person may have consumed
alcohol may in itself constitute a disciplinary transgression. However, even in the
absence of such a provision, an employee’s refusal to undergo a test when there are
clear signs of the possible presence of alcohol may be used in evidence against the

employee, although it would not give rise to a separate disciplinary transgression.
Obviously, any test offered or conducted must be done by someone with appropriate
training and using the correct technology.

Employers should therefore ensure that their disciplinary codes make specific
provision for all the scenarios discussed in this article. Employers should furthermore
ensure that their contracts of employment with all employees have a clause
stipulating that employees are under an obligation to submit to testing if reasonably
required to do so, and that failure to do so will constitute a disciplinary transgression.
Tests must be conducted by persons who are appropriately qualified and equipment
must be up-to-date and calibrated, where relevant.

July 2010
Author: Elsabé Huysamen

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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