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