“I came to work smelling like yesterday's alcohol so they tested me and the results came back positive as obviously I was drinking yesterday. So now my company wants to take me to a hearing and I didn't even get a first warning. Is this right what they are doing? Please help.” Scorpion Legal Protection answers this question from a follower on the Scorpion Facebook page.
When it comes to administering alcohol tests in the workplace, there is nothing in South African labour law about forcing employees to take an alcohol test or restrictions on the type of tests that can be used – it’s all about what is reasonable and fair. While an employer cannot force an employee to take an alcohol test, they can request the employee to subject themselves to the alcohol tests due to zero tolerance of alcohol in the workplace through their policies, procedures and the employment contract.
Policies, procedures and your employment contract
When you agree to start employment with the employer and sign your employment contract, you also agree to their policies and procedures, and this can include submitting to alcohol tests. This may even be specifically included in your employment contract as a clause. You can still refuse to take the tests, but if you do so it means you are in breach of the terms of your employment contract with your employer and also in breach of the company policies and procedures where you agreed to be subjected to alcohol tests. If you choose to refuse and commit the breach, the company is allowed to take disciplinary measures against you.
What is reasonable or not then will depend on the circumstances of each case.
Can you immediately be taken to a hearing without receiving a warning for misconduct?
No. Disciplinary hearings must follow a process and the employer cannot just take the employee to a disciplinary hearing immediately for an act of misconduct, as this will be considered an unfair disciplinary hearing on grounds of a faulty (unfair) procedure followed. If the employee is then dismissed, the dismissal can be challenged at the CCMA because it does not fulfil the requirements for a fair dismissal according to section 188 of the Labour Relations Act.
In order for a disciplinary action to be fair, the following requirements must be met:
- The employee must be informed of the allegations in detail and in a form and language that they understand. The employer cannot just deliver a written note, for example, in complicated legal language that the employee does not understand and think that this is fair.
- The employee should be provided with the opportunity to properly and adequately prepare for the disciplinary hearing and defend themself against the allegations.
- The employee should be advised of their rights to make use of a trade union representative, legal representative (if allowed by the chairperson) or fellow employee to represent them in the disciplinary hearing or the right to represent themself.
- The employer must make sure that the appointed chairperson is impartial and can listen to the allegations, the defence, apply their mind to the facts and the applicable legal principles and make an informed decision.
- The employer must ensure that the employee is advised that they must attend the disciplinary hearing and that failure or refusal to attend without a reasonable cause can result in the proceedings taking place in their absence.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing. This is not financial advice.