by May 21, 2024Employment, News

A common theme that is coming out of the Labour Court of late is the “zero tolerance” approach to being under the influence of alcohol and/or intoxicating substances in the workplace. You can read articles on this topic written by Warren Beech here, here and here.

A recent case held in the CCMA has re-confirmed this approach.  A quick summary of the case is as follows. An employee was employed by Sasko and held the position of Depot Manager at the time of his dismissal. The bakery enforces an alcohol testing policy mandating that all employees entering the premises of the employer, undergo a breathalyser test without exception. On a day in 2020, the employee reported for duty but entered through the dispatch gate instead of the main gate, where the sole breathalyser device is located. Upon discovery that the employee circumvented the breathalyser test, the employee was subjected to the test which yielded a positive result.  A subsequent test twenty minutes later also showed a positive result. Consequently, the employee was promptly sent home.

At the time of the incident, the employee was under a final written warning issued in 2019, valid for 12 months, for repeatedly failing to comply with the breathalyser test requirement upon entering the premises. This warning significantly influenced the employer’s decision to terminate his employment.

A final written warning is intended to signal the employee’s last chance before dismissal for repeated transgressions within a specified period. As an employee who held a senior position at Sasko, this misconduct is particularly serious, and recurrence could warrant dismissal. His deliberate attempt to evade the breathalyser test by using an alternative entrance reflects poorly on his character and seriousness regarding company policies. 

The court considers this evasion as misconduct, indicating that the employee was aware that he was under the influence of alcohol and actively avoided being tested. As a senior employee entrusted with upholding company policies, his actions are especially concerning. The Commissioner at the CCMA deemed the employee’s dismissal procedurally and substantively fair, leading to the dismissal of the review application.

Unlike the Barloworld judgement, as covered in last week’s Top Tip Tuesday here, where the court looked at the differentiation between alcohol use and the consumption of cannabis, the Sasko matter, in relation to alcohol use, being on a final written warning for the same offence, and where the course and scope of the work of the employee includes the operation of heavy machinery, the matter is clear-cut.

From a mining perspective, all reputable studies indicate that alcohol can impair a person’s judgement and their ability to work safely, especially around machinery and other complex infrastructure. In support of compliance with their health and safety responsibilities under applicable health and safety legislation (the Mine Health and Safety Act No. 29 of 1996 for mines (“MHSA”), and the Occupational Health and Safety Act No. 85 of 1993 (“OHSA”) for other industries), employers commonly adopt a “zero tolerance” policy for alcohol and other intoxicating substances in the workplace, in compliance with the employer’s obligation to ensure a safe and healthy working environment. Minerals Act Regulation 4.7.1, which remains in force and effect in terms of Schedule 4 to the MHSA,  provides that “No person in a state of intoxication or in any other condition which may render or be likely to render him incapable of taking care of himself or of persons under his charge, shall be allowed to enter the workings of a mine or be in the proximity of any working place or near any machinery on the surface of a mine or at a works”. General Safety Regulation 2A under the OHSA contains a similar provision which provides that “an employer or user of machinery, 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 the working place or remain at a working place”.  In compliance with this obligation, the employer’s alcohol policy is reinforced by strict disciplinary codes and procedures. Testing positive for alcohol inevitably leads to dismissal in workplaces where a “zero tolerance” approach is implemented.

In conclusion, particularly from a mining health and safety perspective, a zero-tolerance policy for alcohol and drugs resulting in dismissal has proven to be sustainable in workplaces, in compliance with the Employer’s duty to ensure that no persons in a state of intoxication, enters the mine or works or operates machinery.  South Africa’s Health and Safety Laws, namely the MHSA ) and the OHSA), impose significant obligations on employers to ensure a safe and healthy working environment , which includes ensuring that persons in a state of intoxication is prevented from entering the work place where the performance of their duties and functions while in a state of intoxication, constitutes a threat to the health and safety of the person concerned or of other persons at the workplace.