Walking the intoxication test line

BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected]. Visit: Labour Law Management Consulting.

An employer recently remarked to me that the time is fast approaching when an employee will have to kill somebody before his/her conduct can be construed as sufficient to merit dismissal. While this is an exaggeration the Rustenburg Platinum finding and the Shoprite Checkers finding that I discussed in recent articles show that arbitrators and judges are ready to overturn dismissals of employees who have committed serious offences.

This leaves employers at a loss as to when offending employees may or may not be dismissed. One view that appears to be emerging is that the seriousness of the employee’s offence must not necessarily be measured by the potential effect of the misconduct but rather by the actual effect thereof.

In the case of NUMSA obo Motsele vs Haggie Wire and Strand (2006, 2 BALR 163) the employee again argued that, while he had been drinking alcohol he was not drunk and his ability to work was not impaired. Nevertheless, he was dismissed because his alcohol test showed that he was intoxicated. The arbitrator upheld this decision after finding that:

• There was sufficient evidence to show that the employee was intoxicated
• the employee denied that his condition had impaired his ability to work and that this denial counted against him!
• the employee was aware of the potential consequences of his actions
• the employer is entitled to set standards of conduct which arbitrators should not lightly interfere with.

The arbitrator found that the employee’s conduct rendered continuation of the employment relationship intolerable. The above case decision was based on the principle that the employer was entitled to set its own standards for employee conduct and to dismiss employees for conduct that might be seen as potentially dangerous even if there had not been any actual damage done.

However, since 2006 a shift in the mindsets of arbiters has caused a stagger t othe left. In the case of Astore Africa (Pty) Ltd vs CCMA and others (2008, BLLR ) a very different approach to that in the Haggie case was taken. A key reason for this appears to be that fact that the alcohol tests done in the above two cases showed how much alcohol was in the employee’s system while the test applied in the Astore case only showed the presence of alcohol. In this case the employee had not caused any damage to property while driving the company vehicle.

However, his speech had been slurred and he had been tested for alcohol consumption by a client where he was supposed to have been delivering goods. Despite this, both the CCMA and the Labour Court (on review) found that the slurred speech might not have been due to the employee’s consumption of alcohol. They found that there was insufficient proof that the amount of alcohol in the employee’s system impaired his ability to do his work. On this basis they found that the dismissal was unfair.

In labour law employers are not required to prove their charges against employees beyond reasonable doubt. They are only required to prove their allegations on balance of probability. In this case it is clear that:

• the employee did indeed have alcohol in his system; the alcohol test result was not disputed
• the employee’s condition was so apparent that the employer’s client tested him
• he had alcohol on his breath and his speech was slurred.

The arbitrator acknowledged that slurred speech can be an indication of the person being under the influence of alcohol. However, he added that this will not always be the case as slurred speech can also result from tiredness. However, applying the facts of the positive alcohol test result, the red eyes and alcohol breath it is clear, in terms of the principles of balance of probabilities, that the slurred speech showed that the employee was intoxicated. The decision in this case despite the above facts show just how far the pendulum has swung to the left.

In South African Transport and Allied Workers’ Union obo Mmotong vs Staffing Logistics the employee was dismissed after a breathalyser test indicated that he had consumed alcohol and that his level was at 0.05%. The employer claimed that it handled fragile goods and accordingly had adopted a zero tolerance policy. The employee said he had consumed alcohol on the previous day, and that he was unaware of the respondent’s policy on alcohol.

The Commissioner noted the employer was required to prove that the employee not only had alcohol in his system but that the employee was intoxicated to the extent that he was incapable of performing his duties. Furthermore, the respondent had not submitted its disciplinary code to indicate that the offence was described widely enough to encompass a zero-tolerance policy. The employee was reinstated with retrospective effect. These two later decisions are part of a growing line of decisions that could drive employers to drink. However, a less dangerous and more effective remedy would be to utilise labour law expertise as soon as alcohol related cases arise.

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