Alcoholism and the workplace

Nicolene Erasmus, André Claassen and Jan du Toit

Employees arriving at work with alcohol smelling on the breath, employees consuming alcohol during working hours, employees missing days (or even weeks) at work without justification, or with lame and feeble excuses (but never a medical certificate, or perhaps even with a medical certificate every time) and employees slipping out during lunch break “for a quick one” – all this seems to be a problem which is on the increase – with a resulting increase in problems for the employer.

The problem is not restricted only to alcohol; it extends to any substance having a narcotic producing effect. This type of behaviour constitutes misconduct – and all employers should have a company policy in place, that has been communicated to all employees, regulating the consumption of alcohol on company premises, and also off company premises, where it might impact adversely on the employer, the employee, or the employee’s ability to perform his / her duties.

If the employer has no such company policy in place, then that employer has a problem, namely that he cannot take disciplinary action against an employee for breaking a rule that does not exist. We accept that not every rule has to be reduced to writing, on the basis that some rules are so well known that they do not have to be put in writing. But it will greatly complicate matters if there are no such rules in the workplace, and it will make for much smoother sailing if the rules are in place.

The Alcohol Policy must be tailor made to suit each individual company – there is no “standard policy” for this type of thing. For example, the employer would need one set of rules applicable to employees engaged in hazardous occupation – truck drivers, machine or equipment operators, fork truck operators, crane drivers, and so on. The acceptable level of blood alcohol in such persons would be a much lower level than that which would be acceptable in an office worker.

Now before your start shouting “discrimination”, remember that the circumstances demand the approach. For example, an airline pilot who has consumed any alcohol at all in the 24 hour period preceding his next flight is prohibited from carrying out that duty, he is sent home.

An office worker who works for the same airline who has consumed alcohol in the 24 hour period preceding the next shift is not problem, and can attend his/her workplace duties. That is a fair discrimination. In the place of airline pilot substitute truck driver; if the truck driver arrives at work smelling of liquor and the employer allows him to drive and he kills somebody in an accident, the employer could easily be held liable because he gave the driver permission to drive.

The office worker who arrives at work smelling of liquor is another matter altogether he is not endangering life or limb by sitting at his desk and working albeit not at peak efficiency. So an alcohol policy can discriminate fairly between the rules for one class of employee and another class of employee.

If an employer has in place a policy that states that sleeping on duty is a dismissible offence, and the lady who makes the tea is caught sleeping on duty in the kitchen, it doubtful that the employer would successfully defend a claim of unfair dismissal brought by the employee. But if a security guard is caught sleeping on duty, the circumstances are altogether different, and dismissal would in all probability be justified.

Thus the employer must give careful thought to the design and content of his Alcohol Policy. The policy must also contain rules that regulate alcohol consumption off premises during working hours, such as with field sales reps, field technicians, even to the extent of regulating alcohol consumption by managers and executives – business lunches, on the golf course, and so on.

There may be some job categories that carry a high risk for alcohol abuse – such as in the hospitality industry such as barmen, waiters, wine stewards, and people working with alcoholic beverages every day as part of their duties. All these special considerations each require its own unique approach in formulating the rules and regulations, because each has its own unique set of circumstances.

Therefore management is responsible for compiling the Alcohol (& Drug Abuse) Policy and management are responsible to ensure that employees comply. By “management” we refer to every person in a supervisory position who has staff reporting to him.

The Policy must not be as strict as to make problem employees fearful of coming forward – such a policy will only serve to drive the problem drinkers underground – and this compounds the problem because besides being a problem drinker, the employee becomes a secret drinker as well.

If the employer wishes to address the problem effectively, then the formulation of the Policy is important and requires input from all levels of management, and a fair amount of policy content will be decided upon from the results of past experience in dealing with the problem.

38.1 The Occupational Health and Safety Act; General Regulations and the company policy

Section 2(a) of the above mentioned regulations state;

2A. Intoxication

1. Subject to the provisions of sub regulation (3), an 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.
2. Subject to the provisions of sub regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
3. An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.

From the general regulations above it is clear that there is a duty on employers to ensure that employees;

• who appears to be under the influence of intoxicating liquor or drugs are not allowed to work, enter or remain at the workplace;
• are not under the influence of intoxicating liquor or drugs at the workplace;
• do not have intoxicating liquor or drugs in their possession;
• do not offer intoxicating liquor or drugs to other employees.

In other words zero tolerance in that you may not even arrive at work smelling of alcohol that was consumed the night before. To be accused of “having presented for work after having consumed alcohol (or a substance having a narcotic producing affect), or with alcohol smelling on the breath”, the employee does not necessarily have to be plainly intoxicated. He need not necessarily have had to have consumed a sufficient quantity of alcohol so as to have placed him “over the legal limit”.

Being an act of misconduct, it is obvious that dismissal may result if the employee is found guilty after the employer has followed a fair procedure. Thus it is a serious matter and should be dealt with as such but employers are reminded that schedule 8 of the Labour Relations Act prescribes progressive discipline in order to correct that behaviour of the employee. It would therefore be unfair to dismiss an employee the first time he arrives at work smelling of alcohol after a long weekend.

A dismissal may be contemplated in instances where the employee consumes alcohol at the workplace or makes it available to colleagues during working hours, as for the rest we recommend progressive discipline in order to correct the behaviour of the employee. For some strange reason Commissioners very often do not share the passion of employers to have sober employees at the workplace.

38.2 Incapacity or misconduct

Schedule 8 of the Labour Relations Act further recommends that employers should treat situations where it is suspected or known that an employee is the dependent on intoxicating liquor or drugs as incapacity and not misconduct.

The policy (in terms of assistance, counselling, rehabilitation, etc) will only be applied to those employees who have (or who demonstrate that they have) a genuine desire to be helped, and where it can be reasonably concluded that the rehabilitation program will result in success for this employee.

In other words, the employer is not expected to “flog a dead horse.” If an employee undergoes the rehabilitation program as stated in the Alcohol Policy, and later reverts to the old habits, then the end of the road has been reached. The employer does not offer the program again; rather procedures are then followed to secure the fair dismissal of the employee.

Remember, the employer is not in the business of re-habilitating alcoholics, problem drinkers and drug addicts. The employer is only trying to assist those in his employ who have such problems, to the ultimate benefit of both parties.

It is a fact that most persons with such problems will usually, when confronted, vehemently deny that it is a problem, they will be emphatic that they do not need assistance, and that they can stop any time they wish to. In such cases, the employer cannot force the employee to undergo rehabilitation but he can demand that, since the employee has affirmed that it is no problem and that he/she can stop the drinking (or drugging) immediately, the employee must then stop the habit immediately or undergo the rehabilitation program, or face dismissal.

It must be emphasized that there is no obligation the employer to offer assistance – the Code of Good Practice – Dismissal merely states that the employer should consider the matter.

Thus it is for the employer to decide – and generally, assistance will be offered only to those employees who demonstrate that there is a reasonable chance that rehabilitation will be successful, that the employee genuinely realizes that he has a problem and that he needs help.

Generally, if a person’s drinking habits causes an adverse effect on his home life, his work life (or both), then that person can be said to have a drinking problem. We are more concerned with the problem affecting the workplace and if the employee’s output in terms of quantity or quality is affected, or his attendance record in terms of frequent absenteeism deteriorates, or his use of sick leave (often one day at a time with no medical certificate produced) becomes more frequent, then there may be a problem.

There has been some argument on whether the problem is classed as misconduct in that the employee has broken a rule in the workplace or whether it is classed as incapacity in that the employee is incapable of performing his duties due to the alcohol problem. This is arguable and could be either.

The fact is that what the employer is faced with is a non-performing employee who has a problem that is seriously impacting adversely on the employer’s business, and which is costing the employer money.

The person with a drinking problem is an expert at hiding the problem and will go out of his way to “act sober”. He will be extremely co-operative, willing to undertake any task given to him, even if it is outside the general parameters of his job description. There will also be frequent absences from the work-station, with dozens of different excuses to justify this, weak bladder or bladder infection, upset stomach, bad headache, and so on. These absences are of course “drink breaks” or symptoms of overindulge the night before. Very often the problem is compounded because the employee’s immediate supervisor, while suspecting that “something is going on”, very often ignores his suspicions, overlooks (condones?) the frequent absences from the workstation, or even ignores the increasing absences from the workplace for a day or even 2 days at a time.

He also ignores other warning signals, that the employee’s absence always occurs on a Monday, and that he is never available for Saturday overtime. Another problem is that co-workers often will cover up for the errant employee making excuses for him when his absence is questioned by the supervisor and not realizing that by covering up they are in fact making his problem worse.

Whatever the case, the problem must not be overlooked. Further, it is one of those problems that cannot be treated gently; “I will have a chat with him” does not work. The problem is serious, and must be seriously addressed. There are a number of options open to the employer on how to address the issue, some of which may be straight disciplinary action, a written (or even final written) warning, or the employer may choose to follow a procedure of counselling, offering assistance to the employee, and so on.

Another perplexing aspect is that the problem may be caused, not so much by the employees drinking on the job or intoxication at work, but rather by drinking and intoxication off premises and outside of working hours, with the employee being stone cold sober during working hours.

So what do you do when you find that you have an employee who may be an alcoholic, but who certainly has a drinking problem which is affecting his work or the workplace?

Firstly, get as much information as possible from his supervisor, or line manager:

• how a long has the problem persisted?
• specifically in what way is it affecting the job processes?
• how frequently is he absent or late because of this problem?
• how frequently does he go off sick?

Build up all the information that you possibly can, and then write the employee a letter inviting him to attend a meeting to address issues regarding his performance. Remember this is not a disciplinary hearing; it is a case of incapacity (poor performance).

The meeting will be attended by the employee’s line manager or supervisor, and a senior manager to act as Chairperson. At the meeting, present to the employee all the facts that you have at your disposal. Discuss each one in turn, and explain how this is affecting his performance and the job processes in general. Keep careful and detailed notes of the proceedings.

The employee must explain why he is failing to achieve the required work performance standards and he must justify his absenteeism, late coming, and so on.

Eventually the discussion will turn to the drinking problem. Occasionally, the employee will admit straight out that he has a problem and that he needs help. Try to establish the reasons for the drinking. He may have financial problems, he may be involved in a messy divorce, children not doing well at school, illness of a loved one, anything like that or it may even be a work related problem.

Most often, the employee will deny that the drinking is a problem. The typical response is that “it is not a problem, sure I enjoy my odd drink or two after work, but I can stop any time I wish to”. If you get that sort of response, then you reply by stating “we are very pleased to hear that it is not a problem for you and that you can stop any time you wish to. We now require that you stop drinking immediately, and we require an immediate improvement in your attendance and late-coming”.

All of this must be carefully recorded, as well as details of what the employee has undertaken to do to fix the problem of his poor performance. This must be communicated to the employee in writing, together with a date by which he must comply with whatever has been agreed to, and a warning stating that should he fail to achieve the required work performance standard by (allow a reasonable time – say one month) then further procedures will follow which may lead to his dismissal.

Employers can seek the advice of organizations such as SANCA (The South African National Council on Alcoholism and Drug Addiction) or Alcoholics Anonymous or similar organizations, to gain advice and information on formulating a policy, the do’s and don’ts of handling alcoholism in the workplace, and so on.

It must be remembered that the employee’s family also plays a very big part in all this, and consultation (or counselling) with the employee’s spouse could well form a very big part in the process.

38.3 Alcohol in the workplace; when does misconduct become incapacity

In terms of the Occupational Health and Safety Act General Regulations, employers are responsible to ensure that employees that seem to be under the influence of an intoxicating substance, or consume such a substance in the workplace are not allowed on the premises of the company. Many employers, as a result of the mentioned regulations, implemented strict rules in the workplace dealing specifically with the use of alcohol (or any other intoxicating substances) and measures that may taken against offenders.

Examples of such rules could be that an employee may not consume any intoxicating substance prior to reporting for duty. As a result of this rule it would be an offence if an employee reported for duty with his or her breath smelling of alcohol. In terms of the company’s disciplinary code the employee may now be subjected to progressive disciplinary measures such as written warnings and ultimately the termination of the employment relationship.

In Transport and Allied Workers Union of South Africa obo Dabula / Algoa Bus Company (2013) 22 SARPBC 8.11.1, the applicant was dismissed for being under the influence of alcohol whilst on duty.

The results of a breathalyser test reflected a reading of 0.84 which implied a condition of 8 times the allowed limit of 0.10. The test was based on the alcohol content on his breath and not his blood. Despite agreeing to the reading, the applicant denied that he was under the influence of alcohol claiming he was fit to work, no corroborating evidence existed, no observations were made and the breathalyser was not reliable.

The company maintained a zero-tolerance policy regarding being under the influence of alcohol during working hours. The applicant was charged in accordance with the policy which had been consistently applied. The legal limit for alcohol on the breath was 0.10mg/thousand units of breath. The applicant registered a reading 8 times the norm of 0.10. The company norm, however, was zero. It was not the first time that the applicant was confronted with being under the influence. In September 2011, he was counselled having admitted having an alcohol problem but he refused any assistance, stating “he would be able to manage his problem on his own”.

The reading of 0.84 confirmed that was alcohol on his breath and not in his blood. The particular tester was designed to measure alcohol on the breath. No previous warning for alcohol related offences was issued to the applicant, except for the counselling. The applicant could not have been fit for work if he was 8 times over the legal limit. No direct observations were made by the tester. The applicant based his appeal on “desiring a second chance”.

The commissioner stated that employees can be dismissed if they consume alcohol to the extent that they are rendered unfit to perform their duties. Driving under the influence of alcohol contravened a cardinal rule of the respondent in this matter. Rules designed to discourage or prevent the abuse of alcohol during/before working hours assume several forms. Proof that the employee performs work in an area where a mishap could endanger himself, or others, or that the employee’s condition embarrassed the employer, will serve as aggravating factors.

The shear magnitude of the test result makes one whistle. If this is viewed against the policy of zero tolerance, the misconduct is gross. The policy referred to zero-tolerance during working hours – he exceeded the norm by far. This must imply that he was under the influence. The dismissal of the applicant was fair.

In Metal and Electrical Workers Union of South Africaobo Setshedi / Scaw SA (2012) 20 MEIBC 8.11. the applicant was dismissed for reporting for duty under the influence of alcohol. The applicant had used alcohol the previous day. On the day in question, he started work in the morning. According to his shift superintendent, Shongoane, he was found smelling of liquor just before 9am. His foreman, Matlala was instructed to take him to Shongoane’s office after tea at around 10:10am. After a discussion the three went to the front gate where the security official administered a breathalyser test. During the first test the applicant was not represented, but a second security officer was present. The test result was 0.06%. About 28 minutes later a second test was performed, in the presence of a representative, with the result 0.058%.

The rule was that a person could not work if the reading indicating blood alcohol level was in excess of 0.05%. The applicant was called to a disciplinary hearing to answer to the allegation of testing positive to alcohol with a reading above 0.05%.

During the opening discussions, the applicant admitted drinking alcohol the previous day and that the tests reflected his blood alcohol reading as over the limit. Later in the proceedings, however, the applicant questioned aspects around the testing, for example whether the security officer had been properly trained, why he was not represented when the first reading was taken, why the second reading was not taken within 15 minutes, etc. The commissioner was however not convinced that any of these issues are of much assistance to the applicant. The actual test readings were not disputed. He did not dispute that he could have smelled of liquor on the morning in question. The main bone of contention appears to be whether in the circumstances of this case dismissal was an appropriate and fair penalty.

The applicant had 32 years of service with the respondent company but not even that could prevent his dismissal. The commissioner stated that a precedent should not be created that for example if you have a clean record and long service you can expect to get away with breaking such an important and fundamental rule as a first offence. The respondent’s interest in maintaining the standard outweighs what could otherwise have been seen as mitigating factors on the side of the applicant. The dismissal of the applicant was fair.

It could however happen that an employee reports for duty quite frequently with the smell of alcohol on his / her breath, leading the employer to believe that the employee may have a dependency problem. In terms of item 10 of Schedule 8 of the Labour Relations Act alcoholism and drug abuse are considered to be forms of incapacity and should therefore not be dealt with in terms of the disciplinary code of the company. In such instances appropriate measures to address the situation will be counselling and rehabilitation. The employer will therefore have to actively attempt to assist the employee in overcoming his or her dependency problem and as a result it may be recommended that the employee participates in a rehabilitation programme.

The question that must now be answered is when does misconduct become incapacity in terms of the employee that constantly arrives at work either smelling of alcohol or that is actually under the influence thereof?

In Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 LC 1.25.1 an employee, Ms. Louw, was dismissed for arriving at work under the influence of alcohol in 2009. She was employed as a yard official, which involves marshalling and coupling of trains and her position is as such considered to be a safety critical position. Due to the nature of the work the offence of being under the influence of alcohol at work constitutes serious misconduct in terms of Transnet’s disciplinary code.

At the time of her dismissal she still had a valid final written warning on her file for arriving at work under the influence of alcohol. At the arbitration hearing SATAWU disputed both the procedural and substantive fairness of the employee’s dismissal in that, inter alia, the employee was not afforded rehabilitation in terms of Transnet’s Employee Assistance Program (“EAP”).

The Commissioner found that the chairperson of the enquiry was well versed with Transnet’s EAP as well as the employee’s personal problems. According to the Commissioner the Chairman could have recommended counselling as a form of action to address the employee’s misconduct. The Commissioner further reasoned that the employee’s final written warning was only four days away from expiring, indicating that she took the warning seriously and that because Louw was not allowed to work on that day, neither applicant nor Transnet’s passengers were placed in danger.

The Commissioner ordered reinstatement, one month’s salary as compensation and that Louw was to submit to rehabilitation in terms of the employer’s substance abuse policy and to comply with such policy.

Transnet took this on review to the Labour Court arguing that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings. According to Transnet the Commissioner failed to have regard for the principles distinguishing misconduct from incapacity and, more specifically, that the evidence and common cause facts were that the employee was not an alcoholic and did not suffer from alcoholism. Transnet further argued that the Commissioner exceeded his powers by making an award requiring Louw to submit to rehabilitation and to comply with the company policy. Such an award is not contemplated in the context of the powers afforded to Commissioners in determining a dismissal dispute.

Turning to the question whether Louw should have been dealt with in terms of Transnet’s disciplinary code or in terms of incapacity, Judge Steenkamp said that in terms of section 10(3) of the Code of Good Practice, alcoholism is specifically mentioned as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken to assist such employees.

“In fact, the requirement to assist such employees by providing them with treatment has been widely accepted. However, when an employee, who is not an alcoholic and does not claim to be one, reports for duty under the influence of alcohol, she will be guilty of misconduct. The distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such.

Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The employee is not at fault for his / her behaviour and cannot be blamed for their disease and its impact on their behaviour, discipline would be inappropriate in the circumstances.

An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit.”.

Judge Steenkamp found that the Commissioner’s award that Louw was to submit to rehabilitation in terms of Transnet’s substance abuse policy and to comply with that policy was inconsistent with the proven facts that Louw was guilty of misconduct. The Commissioner made a decision that a reasonable decision-maker could not make. The award was set aside.

Employers are advised to introduce alcohol and substance abuse policies in the workplace as well as a basic Employee Assistance Program. In terms of such a policy employees may be disciplined for misconduct if they do not have a dependency problem; employees that do have a dependency problem will be dealt with and assisted in terms of the EAP. It is further recommended that employees who make themselves guilty of misconduct under this policy are asked, every time corrective measures are taken against the employee, whether they have a dependency problem. This way the employer will be able to show that the employee did not have a dependency problem and merely claimed to have problem in order to be saved from a dismissal for misconduct.

38.4 Misconduct or incapacity?

Driven to drink: Misconduct or incapacity? (Employment Law Journal 2012April)

John Grogan discusses two recent cases in which the Labour Court has considered whether being intoxicated on duty should be treated as misconduct or incapacity, and when the twain don’t meet.

Transnet Freight Rail v Transnet Bargaining Council & others [2011] 6 BLLR 594 (LC) commences with this question: Should alcohol abuse ÷ be treated as misconduct rather than incapacity in circumstances where the employee is not an alcoholic”? At first blush, the question seems odd. Alcohol abuse by a person who is not an alcoholic is simply what the term implies – excessive consumption by a person who is able to resist the temptation to have several more for the road than prudence dictates, and who well deserves the inevitable after effects of a binge.

Whether a drinking spree amounts to misconduct depends on the circumstances. If an adult simply retires to bed to sleep it off, probably not. But if boozers know that they are going to drive home, excessive tippling certainly does. So, too, may a binge constitute misconduct where the boozers know they will be working the following day – especially where they perform duties which require a clear head and, even more especially, where they are aware that their employers frown on workers reporting for duty with alcohol in their bloodstreams and on their breath. Casual tipplers who report for duty under the influence may be “incapacitated”. But they have only themselves to blame for their condition. On the other hand, confirmed alcoholics cannot by definition help themselves. They suffer from a condition which makes excessive drinking compulsive, although the effect is much the same.

In Transnet Freight Rail, the court did not pose the question hypothetically. The judge had before him a real case in which an inebriated employee, who was not an alcoholic, reported for duty. The culprit, Ms Louw, was a yard official whose duties involved directing and coupling trains at Transnet’s marshalling yard in Cape Town. Louw also happened at the time to be on a 12-month final warning for a similar offence, but claimed that she had over imbibed on the second occasion because she had been “abused” the night before. Transnet was unimpressed with that explanation. Of far more consequence for the presiding officer was that Louw was in a post designated “safety critical”, that being under the influence while performing “safety critical” work is labelled “serious misconduct” in the Transnet disciplinary code, and that Louw was on final warning for an earlier lapse. Her services were terminated.

A bargaining council arbitrator who was called upon to determine whether Louw’s dismissal was fair took a more sympathetic view. Although he rejected Louw’s submissions that Transnet had applied discipline inconsistently in her case and that the presiding officer had “failed to apply his mind” to the evidence, the arbitrator found that the presiding officer had indeed failed to apply his mind to Transnet’s Employee Assistance Programme and to Louw’s personal problems, with which he was “well versed”, and that the presiding officer could, and should, have recommended counselling. The commissioner added that the passage of 11 months and 26 days since Louw had received her final warning for the earlier lapse proved that she had indeed taken that warning seriously. On top of this, the commissioner added that Louw had expressed remorse, that a lesser sanction such as unpaid suspension would have been more appropriate, that there was no evidence to show that she was incapable of performing her duties and, finally, that Louw had not intentionally breached the rule against reporting for duty while under the influence, but had rather “negligently consumed alcohol the night before she was booked on duty and accordingly she did not deliberately flout [the] rules for some or other personal gain”. The commissioner ordered Transnet to reinstate Louw and to compensate her with a month’s salary, and directed Louw to “submit to rehabilitation” in terms of the Transnet substance abuse policy.

Apart from the rather odd notion of over indulging negligently, the reasons given by the arbitrator for his conclusion that Louw’s dismissal was unfair seem at first glance to satisfy the test for “reasonableness” laid down in Sidumo& another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). The arbitrator had on the face of it considered, if not all relevant factors, at least most of them, and he exercised his own sense of fairness. As found in Sidumo, failure by the arbitrator to take into account some considerations, such as in this case the final warning and the common cause fact that Louw was not an alcoholic, could be considered as oversights so slight as not to amount to “defects” in the arbitration proceedings as contemplated by section 145 of the LRA, at least when it came to determining whether interference with the exercise by the arbitrator of his “sense of fairness” was warranted.

But in Transnet the court did not read Sidumo as giving statutory arbitrators a blank cheque when determining the fairness of dismissals for proven misconduct. The court summarised a number of judgments in which the labour courts have wrestled with the scope of the statutory review grounds in the wake of Sidumo, and came to this conclusion:

“Our courts have recognised that a latent gross irregularity in the conduct of the arbitration proceedings may occur to the extent that an arbitrator may mistake or misunderstand the point in issue thereby failing to afford the parties a fair trial by virtue of the arbitrator misconceiving the whole nature of the enquiry or of his duties in connection with that process.”

Process review:

“Latent” irregularity, which was introduced into our law many years ago in Goldfields Investments Ltd & another v City Council of Johannesburg & another 1938 TPD 551, has now come to be referred to as “process based review”. A latent irregularity is one which appears, not from the record of the arbitration proceedings, but from the reasoning by which an arbitrator arrives at his conclusion. Sidumo was concerned with the outcome of the arbitration. But, as many of the judges confirmed in one of the Sidumo minority judgments and the entire bench confirmed in CUSA v Tao Ying Metal Industries & others [2009] 1 BLLR 1 (CC), more is required of arbitrators than simply exercising their own sense of fairness. They must ensure that the entire process is fair to both parties. The Transnet court confirmed that this entails:

• applying the law of evidence;
• applying the substantive law of dismissal;
• applying the mind to all materially relevant factors;
• disregarding materially irrelevant factors; and
• weighing up all materially relevant factors and issues.

Although the judge added the caveat that failure to exercise any of these “duties” must result in material error, the general test remains — arbitrators must not commit errors which deprive the parties of a fair hearing.

There was a further reason why the Transnet court posed the question quoted above at the beginning of its judgment. Whether going on a bender is treated as misconduct or incapacity may seem an arcane issue in everyday life. In the employment context the distinction may, for two reasons, mean a good deal to employees found at work with an excess of alcohol in their bloodstreams. The first reason is that the Code of Good Practice: Dismissal specifically mentions that “in the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider” (item 10(3)). The second reason is that the same code draws a distinction between dismissals for misconduct (item 7) and dismissal for incapacity arising from ill health or injury (item 10). These two reasons for possible action against employees not only call for different degrees of tolerance from employers; they must also be dealt with by different procedures — misconduct by disciplinary hearings and “sanctions”; incapacity by investigating the wider causes of the employee’s problem, considering accommodating the employee, counselling and, in cases of addiction, rehab.

Blurred

Was Louw guilty of misconduct, or was she entitled to benefit from the reference in the code to “alcoholism”? Turning to that issue, the court quoted with apparent approval an observation by a writer to the effect that “[t]he dividing line between addiction and mere drunkenness is sometimes blurred”, and that whether a case of excessive drinking should be treated as one of misconduct or incapacity “depends on the facts of each case”. The court found the ratio for this observation in the fact that alcoholism is treated in medical circles as a diagnosable and treatable disease, which may incapacitate an employee. For the judge, the line between an incapacitated and an errant inebriate lies in the concept of fault. Alcoholics properly so called cannot be blamed for suffering from a disease, whereas casual drinkers or even heavy boozers who are not alcoholics can and should control their consumption. But the court was happy to accept that “the category of misconduct for reporting for duty under the influence has not been extinguished by the incapacity classification for employees with alcoholism”.

Happily for the court, there was no need to determine whether Louw was an alcoholic. It was common cause that she was not. Had Louw pleaded that she suffered from alcoholism, her case might have had a different outcome. If Transnet had disputed that claim, the presiding officer, the arbitrator and the court would have been faced with a medical diagnosis. This would possibly have entailed expert medical evidence. But an employee’s mere ipse dixit that he or she is an alcoholic need not necessarily mean that his or her word must be accepted, or that medical evidence must necessarily be heard.

Relief

There have been a number of cases in which employees who have been caught drinking just before or while on duty have pleaded after the fact that they are addicted to alcohol, but have not succeeded in proving that claim (for example, Kleinkopje Colliery / NUM obo Mabane [2001] 12 BALR 1289 (AMSSA); Gabaraane / Maseco Systems Integrators (Pty) Ltd [2000] 11 BALR 1231 (CCMA); SATAWU / Metrorail Services [2002] 4 BALR 392 (AMSSA), but see SATAWU obo Lucas / Orex Spoornet Saldanha [2000] 7 BALR 850 (IMMSA); Miyeza / Toyota SA Manufacturing [2005] 1 BALR 64 (CCMA)). Generally, alcoholics should raise their problem with their employers and seek help before arriving at work under the influence or drinking on duty (NUMSA obo Mosibihlele / Nampak [2006] 6 BALR 577 (MEIBC)). Just as their condition will not provide a defence to a charge of drunken driving, even alcoholics may breach the rule against being under the influence while on duty if they are aware of their condition and consciously imbibe, fully aware that they will be working in an intoxicated state. The Code of Good Practice: Dismissal does not provide total immunity for alcoholics. It does no more than suggest that counselling or rehabilitation may be appropriate steps to consider. Everything indeed depends on the facts of each case.

But Transnet raised a legal issue: Did the commissioner err by treating Louw as an alcoholic when in fact she was not? The court ruled that he did. That error went both to the conclusion on the fairness of the dismissal and to the relief granted. In spite of having found that Louw was well aware of the hazards of performing her work while under the influence, the commissioner found that the presiding officer should have recommended counselling. Based on that finding, the commissioner ruled that, after reinstatement, Louw should “submit” to counselling in terms of the Transnet EAP. Apart from the fact that a commissioner’s may well lack power to order reinstated employees to undergo rehabilitation, the difficulty with that order was that it required the impossible. It is simply unfeasible to treat people for alcoholism if they are not alcoholics. Insofar as the commissioner had been influenced by Louw’s domestic problems, they were insufficient to prove that she was an alcoholic. As the court pointed out, the commissioner’s finding would “make the distinction between incapacity and misconduct for alcohol-related matters meaningless”: if correct, it would force employers “to treat all cases involving employees under the influence of alcohol as suffering from alcoholism, regardless of whether they are ill or not”. In short, the ruling showed that the commissioner “failed to appreciate the purposes of the EAP and ÷ the important distinction between misconduct and incapacity in evaluating employee conduct”.

Preposterous

That was not the only error in the award. The commissioner found that, at “best” (presumably intended to be “worst”) for Louw she had merely acted negligently when consuming an excess of alcohol on the night before reporting for duty. By this, the commissioner presumably intended to mean that Louw had not done so with the deliberate intention of breaking the rule against reporting for duty under the influence. Even that construction of the term “negligence” defies logic. Unless fortifying themselves to commit a crime, people seldom drink to defy rules. Louw’s misconduct lay, not in the act of drinking, but in reporting for duty knowing that she was under the influence and that she should not have done so. The same went for the arbitrator’s reliance on the fact that Louw caused no harm because she was not allowed to commence work on the day in question. That met with the riposte, already made by the arbitrator in NUMSA obo Davids / Bosal Africa (Pty) Ltd [1999] 10 BALR 1233 (IMSSA) (approved in Exactics-Pet (Pty) Ltd v Patelia NO & others [2006] 6 BLLR 551 (LC)) that “the plea that the moral culpability of a person who is drunk in charge of a vehicle or machine is diminished because he fails to have an accident before being apprehended is clearly preposterous”.

Finally, the court rejected the arbitrator’s finding that Louw’s sobriety since receiving her final written warning indicated that she had taken it “seriously”. This finding was belied by the fact that Louw did in fact lapse during the currency of the warning. But more seriously, for the court, was that by regarding as a mitigating factor an employee’s compliance with a warning for most of the period it remained in force, the commissioner had misconstrued the purpose of final warnings. Following NUM & another v Amcoal Coliery t/a Arnot Colliery & another [2000] 8 BLLR 869 (LAC), the court held that final warnings are meant to be final. Their effect does not diminish over the period for which they are enforced. Nothing turned on the fact that the warning had only a few days to run; it remained a valid final warning until it expired. The court added that, in any event, the warning was not a necessary factor in evaluating the fairness of Louw’s dismissal. It was merely the cherry on top. Of far greater significance was the nature of her work, the danger posed to herself and others, and the message that would be sent to the rest of the Transnet workforce if she was not dismissed, to none of which considerations the commissioner had any or adequate regard.

Booze-up

A similar matter was argued in the Labour Court in Durban about six months after the Transnet judgment was handed down in Cape Town, fortuitously before the same judge. Builders Trade Depot v CCMA & others [2012] 4 BLLR 343 (LC) had an odd start, but in the end involved the same issue that was before the court in Transnet. When the matter was initially heard in the employer’s absence, the presiding commissioner found, on the employee’s evidence alone, that he had been fairly dismissed. In spite of having been present at the hearing, the employee, Mr Naidoo, applied for rescission of that award. The same commissioner found that Naidoo had behaved “reprehensibly” by insisting that the matter proceed in the employer’s absence, because Naidoo had earlier agreed to a postponement. Yet the commissioner rescinded his award on the basis of (unstated) “legal principles”.

When the matter was arbitrated again, the employer led evidence that Naidoo had been found on the afternoon in question showing all the signs of a recent booze-up—swaying as he stood, slurring his words and viewing the world through bloodshot eyes. Naidoo was normally a salesman, but at the time was acting as a relief forklift driver. In spite of his condition, Naidoo initially denied that he had been drinking, but eventually admitted that he had drunk a “Long Tom” beer during his lunch break, which seems to have been an understatement. In spite of this evidence, the second commissioner who arbitrated the matter ruled Naidoo’s dismissal unfair and reinstated him without back pay, subject to a final written warning.

Scotched

On review, Builders Supply Depot attacked both the rescission ruling and the final award. If the first ground succeeded, the initial award would have stood. The second ground would have had the same effect, because the company asked the court to substitute the second award with a ruling that the dismissal was fair. As it happened, both grounds succeeded. The court found that, since Naidoo was present at the initial arbitration hearing, he could not rely on section 144 of the LRA because, though an “interested party”, the first award had not been “erroneously sought or made in the absence of any party affected by that award”, as required by subsection 144(a), because Naidoo had been present. Since no other ground existed for rescission, the first commissioner had exceeded his powers by rescinding the award.

But the court’s findings in respect of the second award are of more relevance to the problem of drinking on duty. The judge reaffirmed the points he had made in Transnet, and found the facts remarkably similar. First of all, Naidoo was on final written warning for an earlier offence of drinking on duty. Secondly, it was an established fact that he was drunk on duty. Thirdly, the commissioner had also found (in spite of the clear law laid down in Transnet, which had by then been reported) that Builders Supply Warehouse was under a “greater duty” to investigate the cause of Naidoo’s drinking, without specifying why or against what standard that duty was “greater”.

However, there were two minor differences in Naidoo’s case. The first was that Naidoo’s representative had pleaded that he was an alcoholic; the second was that the commissioner could find no proof that Naidoo was incapable of performing his duties. As it turned out, the claim that Naidoo was an alcoholic was scotched by Naidoo himself, who had vehemently denied that he had a drinking problem. According to the court, the second claim was equally devoid of merit. Even if Naidoo had not been required to drive a forklift at the time, he had to interact with members of the public as a sales representative, who would embarrass the company if he did so while swaying about, slurring his words, and viewing customers with bleary eyes. But of greatest importance was that, as in Transnet, the commissioner had ignored the fact that Naidoo was on final warning, though this time of more recent vintage, for drinking on duty. Although the commissioner had not gone so far as to direct Naidoo to “submit” to rehab, he had nonetheless forced the company to accept him subject to a fresh “final” warning, while he had already been on one. The court accordingly set aside both the rescission of the first award and the second award, thereby confirming the initial finding that Naidoo’s dismissal was fair.

Transnet and Builders Trade Depot make and confirm a number of points. The first, and obvious, is that when it comes to drinking on duty, alcoholism is one matter, and simple boozing is quite another. In terms of these judgments, employers are not obliged in each case of intoxication on duty to investigate whether the employee is an alcoholic, or merely a binger, especially where, as in Builders Trade Depot, the employee vehemently denies being an alcoholic and having consumed alcohol and even, as in Transnet, where the employee claims to have been driven to drink by domestic circumstances. It must follow that, if employees find themselves driven to drink, an onus rests on them to seek the employer’s help. The employer’s obligation to treat them as “incapacitated” arises only after they do.

38.5 The breathalyzer and field sobriety test

Considering all of the above it is clear that employers should have in place an effective Alcohol Policy which is lawful, fair and attainable. This includes the means of testing suspects at work to ascertain the levels of alcohol in their blood, by qualified staff with approved and reliable testing equipment.

It would be disastrous if an employee, having been dismissed for breach of the Alcohol Policy, was able to show at Arbitration that your testing equipment has a 50% or even 30% margin of error, or that the last calibration date was 2 years ago.

The degree of drunkenness must be tested and employers are permitted to ask the employee to submit to a breathalyzer test, or to a blood test. Obviously the blood test can only be done under the supervision of or by a suitably medically qualified person. It is advisable to get such consent form the employee at the beginning of the employment relationship by means of a clause in the employment contract or Alcohol Policy. A refusal by the employee to undergo any such tests would be seen as an aggravating factor, because the employee is in fact being offered an opportunity to prove his/her innocence.

The policy can provide for random testing – especially where there is a large number of employees in the workplace. This can be done in a number of ways to ensure impartiality. On entering the workplace, the employees draw a number form a box and all even numbers are tested or every second odd number is tested, and so on.

Compulsory testing can be done where there are obvious signs of alcohol consumption or drug abuse – the smell of alcohol on the breath, bloodshot eyes, unsteady on the feet, attitude (aggressive or confrontational) turning the face away from the person being spoken to, shielding the mouth with a hand when speaking, unusually dishevelled appearance, and so on.

The breathalyzer test can be carried out by the employer, on the company premises, by a person who has been trained in the proper use of the instrument. The employee’s consent to undergo either test must be obtained in writing, and the employee is entitled to have a representative present to witness the procedure. The employer should also have another person present to witness the procedure on behalf of the employer.

In NUMSA obo Mbali and Schrader Automotive SA (Pty) Ltd (2005) MEIBC the applicant arrived at work reeking of alcohol and his blood alcohol level registered 0.05% per 100ml. The applicant was subsequently charged with and dismissed for being under the influence of alcohol during working hours. The employee claimed that he was not under the influence of alcohol and last consumed alcohol the night before at 21:00.

The CCMA Commissioner found that the dismissal was unfair because the employer could not prove that the employee was under the influence of alcohol. Witnesses testified that although the employee he reeked of alcohol he did not exhibit any other telltale signs of being under the influence of alcohol. In essence the employer failed to prove to the Commissioner that the employee was unable to perform his normal duties as a result of being under the influence of alcohol. The applicant was reinstated.

It is therefore of utmost importance to not only rely on the results of the breathalyzer test alone but to build into the company’s Alcohol Policy a standard field sobriety test. This test will be done by the manager of the employee in the presence of another reliable witness at will be able to testify on the behaviour of the employee during the test. This in addition with the results of the breathalyzer test should be conclusive proof that the employee was unable to perform his normal duties as a result of being under the influence of alcohol.

The field sobriety test:

• Horizontal gaze test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.
• Walk-and-turn (heel-to-toe in a straight line). (This test is designed to measure a person’s ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.)
• One-leg-stand.
• Modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test).
• Finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger).
• Touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1).
• Count backwards from a number such as 30 or 100.

In addition to the test, the employer (and witness) must make a note of;

• the employee’s general appearance (is he/she untidy, dishevelled, etc )
• general attitude (aggressive, abusive, confrontational)
• bloodshot eyes
• slurred speech

All these observations must be reduced to writing and signed both by the observer and the observer’s witness.

One must be careful to not over rely on specific isolated observations made during the investigation. In Ramoitshane / Dixon Batteries (Pty) Ltd (2009) 18 NBCCI 8.11.5 the applicant was dismissed for being under the influence of alcohol due to the fact that his eyes were bloodshot and he arrived late for work. This combined with a previous warning for arriving at work under the influence of alcohol led the employer to believe that the employee was indeed again under the influence of alcohol and the employee was subsequently dismissed. The Commissioner found it strange that the employer did not have any breathalyzer tests available when the employee insisted to be tested and questioned the necessity of the strict zero-tolerance policy enforced by the employer if breathalyzer tests were not even available when needed. The Commissioner also believed that an employee that is under the influence of alcohol would not insist on being tested if that is the case.

In addition to this the Commissioner noted that the applicant still had bloodshot eyes when he arrived for arbitration and believed the employee’s version that he suffered from a chronic problem resulting in the red eyes and that it was not as a result of drinking. The dismissal was substantively unfair and the employee was reinstated with back pay.