In the matter Astore Africa (Pty) Ltd v CCMA & others [2008] 1 BLLR 14 (LC) where an employer dismissed an employee (a truck driver) for being drunk on duty, the CCMA at arbitration ordered reinstatement of the employee, stating that the employer had failed to prove that the driver was incapable of driving.
It is surely advisable that Employers must have a written Alcohol and Drug Abuse Policy in place.
The policy must clearly stipulate what the testing procedure shall be. For example, before the test procedure commences, the employee is entitled to have a representative to assist him, and the employer will also have a representative present as a witness. The test procedure will require the employee to blow on a reliable and properly calibrated breathalyzer, preferably one which also measures the blood alcohol content as well as the alcohol content on the breath.
Note will be taken of the employees appearance, bloodshot eyes, slurred speech, attitude - aggressive or abusive - and the employee will be required to walk a white line painted on the floor with his arms held out horizontally. Any of these issues which bring a negative result, count against the employee and constitutes circumstantial evidence which entitles you to reach a logical conclusion that the employee has been consuming or appears to have consumed alcoholic liquor or drugs.
The policy must state that the breathalyser will be calibrated in the presence of the employee and his representative, in order to avoid any arguments regarding the accuracy of the instrument. Employers must also incorporate into the policy the provisions of the Occupational Health And Safety Act, Act 85 of 1993, in particular general safety regulation number 2A, which addresses the issue of intoxication. This regulation states that "any employer or a user, 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 or remain at a workplace. It goes further to state that no person at a workplace shall be under the influence of, or have in his or her possession, or partake of or offer to any other person intoxicatingly go or drugs.
This means that if an employee who is under the influence of alcoholic liquor or drugs, or who appears to be under the influence of alcoholic liquor or drugs, arrives at the work premises, the employer is legally obliged to refuse him entry to the premises. The words in this safety regulation " or who appears to be" is vitally important. The testing procedure outlined above, if producing a negative result, will entitle the employer to conclude " this employee appears to be under the influence of alcoholic liquor or drugs - therefore I will not allow him entry to the premises."
The breathalyser test result, whether above or below 0.05, will enable the employer to state " our limit is zero tolerance. Therefore, in terms of our limit and policy, this employee may not work."
The Occupational Health and Safety Act regulation 2A mentioned above states quite clearly that if a person appears to have consumed alcoholic liquor or drugs, the employer may not allow that person to enter the premises. This means, that if a person appears to be under the influence of alcoholic liquor or drugs, the employer may not allow him to enter the premises to carry out his duties.
