Dealing with alcohol and drug abuse in the workplace is not easy. At the one extreme you might have a driver who drinks heavily on a particular occasion while on duty, and then drives and crashes a company vehicle while under the influence of alcohol. At the other extreme, you might have a clerk who occasionally smells of alcohol at the workplace, but approaches the employer of his own free will for assistance with alcohol dependency. While these situations clearly require different approaches, there could be a number of situations in between that each requires a slightly different approach.
Xstrata Coal SA has a strict alcohol policy which contains a so-called ‘Cardinal Rule no 1’, which states: ‘We will always come to work free from the influence of alcohol or drugs’. The rationale for this ‘zero tolerance’ policy is its need for health and safety in the mining environment. This policy also requires the rule to be applied consistently at all company premises. In practice, the policy implies that a reading of 0% is required when an employee is tested. The policy further provides that an employee can test himself before entering the premises. If his reading is above the limit, he is sent home without pay and without being subjected to disciplinary action. However, if an employee is tested after clocking in and found to be above the limit, the sanction is dismissal.
In the case of Xstrata Coal SA v CCMA & others, the employee in question did not test himself when he reported for duty. After entering the workplace he was tested. His blood alcohol measurement was between 0.015 and 0.017 grams/100ml. He was subsequently dismissed after a hearing. The CCMA held that the dismissal was substantively unfair due to a lack of evidence that the employee had been under the influence of alcohol. Apart from a slight smell of alcohol on his breath, there was no other evidence that his actions were in any way influenced by the presence of alcohol in his system.
On review, the Labour Court overturned the arbitrator’s findings and held that he had misunderstood the question that had to be determined. The question was not whether the employee was under the influence of alcohol, but whether he transgressed a valid and reasonable rule that justified his dismissal. The court found that the employee never disputed the reasonableness of Cardinal Rule No 1 and that he had clearly been aware of the importance of the rule, namely to ensure health and safety in the workplace. He further had an opportunity to avoid contravening the rule by testing himself before entering the workplace, which he failed to do. In this case dismissal was justified.
This case does not provide authority for the proposition that all employers, irrespective of their circumstances, may implement a zero tolerance policy similar to Xstrata’s and then dismiss any employee who acts in breach thereof. In the event of a dismissal, the employer has to prove that the employee contravened a known and consistently applied workplace rule that is valid and reasonable. The latter requirement is the critical one. The employer has to prove that the zero tolerance rule was ‘valid’ in the sense that the employer had a justifiable, business-related reason for adopting such a strict approach to a particular offence. While certain rules, e.g. rules prohibiting theft or being under the influence of alcohol are inherently valid and would probably lead to dismissal if transgressed, a policy, such as a zero tolerance approach to the mere presence of alcohol in the employee’s system, requires special justification to lead to summary dismissal.
In the Xstrata case, the justification was in the nature of the company’s operations and the high premium that the company placed on health and safety. Not all employers will be able to use this as a justification for introducing a zero tolerance policy towards the presence of alcohol in an employee’s system. Employers that are involved in manufacturing, or who employ drivers of any kind, might be able to do so. However, they would be well advised to also provide an ‘escape’ option for employees, such as a self-testing opportunity or voluntary testing by security personnel who are trained for this purpose.
It is also possible for employers to have different alcohol- related rules for different parts of its business, e.g.: a zero tolerance rule i.r.o. the possession, consumption or distribution of alcohol on company premises or during breaks, applicable to all employees; a zero alcohol limit for machine operators and drivers of company vehicles, including forklift drivers; a rule that other employees outside of these categories may not be under the influence of alcohol, and, in addition; that employees dealing directly with members of the public are not allowed to smell of alcohol. Not every transgression of these rules will necessarily justify dismissal. However, while the rules that are justifiably classified as ‘zero tolerance’, the justification for dismissing someone for breaking one of the remaining alcohol- related rules will depend on the circumstances of each case, including the employee’s record, length of service and the circumstances of the transgression.
To guard against situations where employees claim alcohol dependency after they had been caught transgressing alcohol-related rules, it is advisable for employers to provide employees with access to assistance (e.g. an employee wellness scheme or at least advice on how to deal with possible alcohol dependency), and to make them aware of this. Line managers who suspect that an employee might have an alcohol problem should also be instructed to refer such employees for assistance that may be available, at the earliest opportunity, and to keep record of such interventions. The level of engagement and assistance should be of such a nature that, if challenged at the CCMA, the employer would be able to provide evidence that it had taken timeous and sufficient steps to assist the employee concerned before the transgression took place.
Written for www.labourwise.co.za by Prof Barney Jordaan of Maserumule Consulting Learning and Organisational Growth