Daily Dispatch

Zero tolerance on alcohol in the workplace: What does this mean?

- Jonathan Goldberg

Many employees have an occasional drink. However, employers are legally obligated to keep their workplace safe. A recent arbitratio­n at the Commission for Conciliati­on, Mediation and Arbitratio­n shows this requiremen­t action.

In SA Transport and Allied Workers' Union obo Mmotong / Staffing Logistics – 2018) 27 NBCRFLI 8.37.2 also reported at

[2018] 1 BALR 26 (NBCRFLI) (an arbitratio­n):

• The employee was dismissed after a breathalys­er test indicated that he had consumed alcohol.

• The employer led evidence that – as a major part of their business – the company handles fragile goods. This meant that they had decided to adopt a zerotolera­nce policy to alcohol.

• The employee gave evidence he had consumed alcohol on the previous day as well as he was unaware of the employer's policy on alcohol.

• The Commission­er noted – from the evidence before him – that the employee had been charged with reporting for work under the influence of alcohol. He contended that the employer could not be faulted for taking a strict view of this offence therefore it was required to prove the worker was under the influence.

• The breathalys­er test had

registered 0.05%. It is generally accepted breathalys­er tests are less accurate than blood tests and that their results are not definitive. Corroborat­ive evidence – in other words evidence to back up the claim the worker was intoxicate­d – is required to show he was.

• The employer had not led evidence to prove that the employee was intoxicate­d to the extent that he was incapable of performing his duties. The employer had not submitted its disciplina­ry code to indicate that the offence was described widely enough to encompass a zerotolera­nce policy, which the case law indicated could not be relied upon. The worker was reinstated with retrospect­ive effect. The lesson is that if you charge someone with reporting for work in an intoxicate­d state you need to prove this on a balance of probabilit­ies. Having a zero-tolerance policy on alcohol is acceptable in certain workplaces but the penalties imposed should be appropriat­e.

Jonathan Goldberg CEO of Global Business Solutions. In this weekly column, labour lawyer Goldberg looks at various aspects of labour law. Readers can e-mail questions to news@dispatch.co.za. Use Workwise in the subject heading.

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