Discipline and Dismissal




I came across a Court judgement the other day which really caused me concern.


It dealt with the matter Astore Africa (Pty) Ltd v CCMA & others [2008] 1 BLLR 14 (LC) where an employer dismissed an employee (a truck driver) for being drunk on duty, and the CCMA at arbitration ordered reinstatement of the employee, stating that the employer had failed to prove that the driver was incapable of driving. This immediately brings to mind - at least, to my mind anyway, further very important questions.



Firstly, what standards must an employer apply in order to test whether or not an employee, who is under the influence of alcohol, is capable or incapable of performing his duties?

We all know that the legal limit in terms of the Road Traffic Act is 0,05.



So does this mean that if your truck driver gives a reading of 0,49 on your breathalyzer, that you must will allow him to drive a truck, a forklift, operate an overhead crane, and so on ?

What happens if you allow such a person to drive your truck, and causes an accident. Who is liable ? Are you, the employer, liable - because you told him that despite the fact that he had consumed liquor, he was under the legal limit and could therefore drive ?



My view is - not at all!!



Firstly, all employers must have a written Alcohol and Drug Abuse Policy in place. It is not clear from the judgement in the case mentioned above whether or not this employer did have such a policy. In my view. It is essential for employers to have such a policy - and the policy must state that the employer's rule is " Zero tolerance."

 

The policy must clearly stipulate what the testing procedure shall be. For example, before the test procedure commences, the employee is entitled to have a representative to assist him, and the employer will also have a representative present as a witness. The test procedure will require the employee to blow on a reliable and properly calibrated breathalyzer, preferably one which also measures the blood alcohol content as well as the alcohol content on the breath.



Such instruments can be purchased for around R3500 TO R4000 - something in that region. The policy must state that employees who are suspected of having consumed alcoholic liquor or drugs will be required to undergo the breathalyser test. Note will be taken of the employees appearance, bloodshot eyes, slurred speech, attitude - aggressive or abusive - and the employee will be required to walk a white line painted on the floor with his arms held out horizontally. Any of these issues which bring a negative result, count against the employee and constitutes circumstantial evidence which entitles you to reach a logical conclusion that the employee has been consuming or appears to have consumed alcoholic liquor or drugs.


 

The policy must state that the breathalyser will be calibrated in the presence of the employee and his representative, in order to avoid any arguments regarding the accuracy of the instrument. Employers must also incorporate into the policy the provisions of the Occupational Health And Safety Act, Act 85 of 1993, in particular general safety regulation number 2A, which addresses the issue of intoxication. This regulation states that "any 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. It goes further to state that no person at a workplace shall be under the influence of, or have in his or her possession, or partake of or offer to any other person intoxicatingly go or drugs.



This means that if an employee who is under the influence of alcoholic liquor or drugs, or who appears to be under the influence of alcoholic liquor or drugs, arrives at the work premises, the employer is legally obliged to refuse him entry to the premises. The words in this safety regulation " or who appears to be" vitally important. The testing procedure outlined above, if producing a negative result, will entitle the employer to conclude " this employee appears to be under the influence of alcoholic liquor or drugs - therefore I will not allow him entry to the premises."



The breathalyser test result, whether above or below 0.05, will enable the employer to state " our limit is zero tolerance. Therefore, in terms of our limit and policy, this employee may not work." The Labour Court found that the Commissioner's decision that the employer had failed to prove that the employee was unable to do these duties, was a rational and justifiable decision on the part of the Commissioner. The Commissioner at the CCMA concluded (correctly, according to the Labour Court ) that there was no evidence that the employee's ability to perform his duties had been impaired by the consumption of alcohol.



Just how much more scientific evidence is needed - from dozens of different sources available to anybody on the Internet - to show that the consumption of alcohol impairs the judgement, the reflexes and the reactions of the person who has been consuming the liquor??



Surely employers do not have to back up their decisions in such matters with scientific evidence ? Even looking at simply one aspect of this entire matter – the Occupational Health and Safety Act regulation 2A mentioned above. It states quite clearly that if a person appears to have consumed alcoholic liquor or drugs, the employer may not allow that person to enter the premises. This therefore means, in very clear terms, that if a person appears to be under the influence of alcoholic liquor or drugs, the employer may not allow him to enter the premises to carry out his duties.

In my view, very simple.

 
 

It is not a question of whether the amount of liquor consumed or the degree of drunkenness is sufficient to cause the employee to be incapable of carrying out his duties. The question is - if he has consumed or appears to have consumed alcoholic liquor or drugs (in any quantity ) he may not enter the premises. The act does not say how much he must have consumed before you can refuse entry to the premises.



It merely says " if he has consumed or appears to have consumed " then he may not enter the premises or remain on the premises 
And that, in my view, is the end of the matter.

Make sure you get that policy up and running as quickly as possible.

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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