Article written Gysbert Janssen (Legal Advisor forvLabour, Consumer Protection & POPI at SEESA – East London
In today’s era, companies are struggling with employees coming to work, seemingly under the influence of alcohol. This is a nationwide problem which is more challenging to address than one might think.
When an employee is seemingly under the influence of alcohol, the best way to prove this is to have the employee do a formal breathalyser test. This will help you establish if your hunch regarding his alcohol status is correct.
The alternative is an observation with witnesses. When you suspect that an employee is intoxicated, it is always better to have witnesses. These witnesses can be supervisors, managers, or any other person who you believe will testify on your behalf to the physical state of the employee.
A person who is usually under the influence of alcohol shows some signs thereof, being bloodshot eyes, severe sweating, smelling of alcohol, being unsteady on their feet or even slurring their speech as they try to explain themselves out of that predicament. These are just a few examples of the side effects of alcohol. Document all these observations on an
observation report and have all the witnesses sign that they also observed the same. Also request the employee to sign the observation report and date it. If he refuses to sign, you have a witness again to witness his refusal to sign and have this witness write it on the observation report.
It is important that after all this is done that the employee is sent home for the day as you can no longer have him/her on your premises and perform his/her work due to the fact that it is the employer’s responsibility to ensure that the workplace safe. The employee can hurt himself/herself and/or others whereby you can then be held liable thereof. It also does not help
your case if the employee is required to continue working on that day, as it will damage the case build against the employee.
Another crucial thing an employer should always remember is that an employee might only have alcohol in his system and are no longer under the influence of alcohol, which means they can perform their duties as normal even though a breathalyser test indicated alcohol or there
are observations of alcohol on the employee. The employer must have a policy in place to address alcohol and drugs in the workplace. This will help to prove that the employee might not be guilty of being under the influence of alcohol, however, he is guilty of contravening the employer’s alcohol policy regarding having alcohol in his system when whilst on duty or when he reported.
The employer must be mindful that should a disciplinary enquiry be conducted that in terms of the LRA (Labour Relations Act), a fair procedure must still be followed and that the employee should be allowed the opportunity to state a case in response to the employer’s allegations.
The courts have also endorsed the concept of corrective or progressive discipline.
Contact your nearest SEESA office to assist your business with issues relating to alcohol and to advise you on these complicated matters.
References:
Labour Relations Act, 66 of 1995, as amended.
Occupational Health and Safety Act 85 of 1993, as amended.