But as a responsible employer what do you do about an employee who turns up for work drunk (or on drugs)? Apart from safety concerns (important in all businesses, absolutely critical in some), the mix of alcohol and employees is a toxic recipe for reduced productivity, poor work performance, absenteeism, loss of earnings, low staff morale, poor employee health, and bad public relations.
A case in point
A recent Labour Court decision illustrates the legal position (what follows is of necessity a summary of the applicable principles only – take specific advice on your particular circumstances).
- An employer had in place an Alcohol and Drug Dependence Code requiring employees with a dependency problem to seek assistance from the employer, and a zero tolerance policy towards alcohol-related misconduct. The Code stressed the necessity of safety in the workplace (in this case a diamond processing business).
- A senior employee with full knowledge of the zero tolerance policy reported for work whilst intoxicated and a disciplinary enquiry was duly convened.
- The employee pleaded guilty at the enquiry but claimed to have an alcohol dependency problem. He was dismissed for failing to adhere to company policies and procedures, the employer’s disciplinary code providing for summary dismissal for even a first offence of this nature. Critical factors were the employee’s failure to produce any medical evidence in support of his claim to have a dependency problem, and the fact that he had not, as required by company policy, raised the alleged problem with his employer before being caught.
- The employee took the matter to the CCMA, which found that the dismissal was unfair on the basis that the disciplinary hearing should have been adjourned for investigation into the possibility of rehabilitation.
- On review, however, the Labour Court found the dismissal to have been fair in all the circumstances. The Court stressed the employee’s knowledge of the zero tolerance policy, the importance of safety in the workplace, the fact that incapacity was not an issue at the hearing (not having been raised by the employee), and the lack in any event of any proof of alcohol-related incapacity.
Employers: Incapacity or Misconduct?
- Alcoholism and drug abuse are regarded as being forms of “incapacity” in our law, requiring that counselling and rehabilitation be considered before dismissal or disciplinary action. It is therefore essential always to distinguish between cases of “misconduct” and cases of “incapacity”. Have in place an alcohol and drug dependency code with clear procedures for reporting of problems and provision of assistance, together with disciplinary policies appropriate to your business.
- Make sure that all your employees are aware of, and confirm knowledge of, these policies and codes.
- If an employee is found to be under the influence of alcohol or drugs at work, proceed by way of either disability procedures or a disciplinary enquiry for misconduct as appropriate.
Take advice if in doubt!