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Being drunk or smelling of booze when you report for work is often thought of as a fireable offence, but not always. What if you had a drink at a workplace event or client meeting? What if you work from home? Scorpion Legal Protection takes a look at the laws that come into play.
The employer is responsible for making sure an alcohol policy is in place so that there is no confusion about the consequences of alcohol consumption, coming to work drunk and smelling of booze in the workplace or during working hours. This policy should be clearly communicated to all employees and made available to them. It must explain what the company’s rules are regarding the alcoholism.
With so many companies using work-from-home policies due to the pandemic, the company’s alcohol policy may extend to specify rules regarding alcoholism in your home during working hours, since your home technically becomes your workplace. For example, if you have a drink during your lunch and it affects your ability to perform your job afterwards, or you were drinking at a party the night before and struggle to perform your duties the next day, your employer may still be able to offer you help through the company’s employment wellness programmes or take disciplinary action against you depending on the circumstances of each case even though you are not physically in the office.
The onus remains with the employer to prove that you were unable to perform your duties because you were drunk. In the case of Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC) the employee was dismissed for having consumed alcohol. The courts stated that the real test is whether the employee’s ability to perform their work is impaired. In this case, the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.
The alcohol policy could also include rules about drinking at company events and with clients, whether or not there is a zero-tolerance policy, and what disciplinary action can be taken against employees who are found to be breaking the rules. The policy can also explain what methods of evaluation will be used, for example, blood alcohol test, breathalyser test, field sobriety test, etc and what happens if you refuse them.
Alcohol policies will differ between companies and may even differ across departments. This is because the consequences of consuming alcohol differ depending on the employee’s job. For example, two employees work for a transport company: one is a driver, the other works in admin. They go out for a drink together over lunchtime and come back to the office drunk. If the driver is allowed to perform his job, he could go on the road, cause an accident and kill both himself and others on the road. If the office worker goes back to his job, he may fall asleep or act up in the office, but he does not risk his life or the life of others. One employee could end up killing people as a result of consuming alcohol whereas the other poses no risk to life. When the company takes disciplinary action against both employees, the driver may be dismissed from his job whereas the office worker may get a final warning but remain employed. The company’s alcohol policy should explain any differences in disciplinary action across departments/job roles.
Whether or not the employer can fire you for being drunk at work depends on their alcohol policy, disciplinary processes and whether or not the action of firing a specific employee is a fair punishment for the offence.
The Occupational Health and Safety Act, Section 2(a) clearly explains that employers have a duty to ensure that employees who appear to be under the influence of intoxicating liquor or drugs are not allowed to work, enter or remain at the workplace. This means that in zero tolerance policies, you may not even arrive at work smelling of alcohol that was consumed the night before.
You don’t necessarily have to be obviously drunk, the fact that you smell of alcohol or your behaviour indicates you have been drinking is enough for the employer to follow their disciplinary processes as per their policy. This becomes increasingly relevant in jobs that involve heavy or dangerous machinery, drivers, security workers etc. where the safety of the employee as well as others is at risk.
Schedule 8 of the Labour Relations Act explains that if the employer knows or suspects an issue of alcoholism, the employee’s actions must be handled as incapacity rather than misconduct. Their policies in terms of offering help (employment wellness programmes), counselling, rehabilitation, etc will only apply to employees who show a willingness to be helped. The employer is expected to try and accommodate the employee’s illness (alcoholism can be viewed as an illness), but if the employee refuses or goes through these processes and still reverts back to their old ways, the employer is entitled to take disciplinary action.
* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 23 September 2021