This is quite a common problem in the workplace. It could also involve dealing with drugs or alcohol at the workplace, or the use or abuse or being under the influence of alcohol. If conducted in the presence of clients suppliers or the public, it can even involve bringing the employer’s name into disrepute.
When testing an employee for “under the influence”, the employer has the onus to declare and submit evidence in a disciplinary enquiry - what equipment was used for the test, how it is calibrated, or how the test was administered. If an employee tests positive for being under the influence, the employee should not resume any duties and should be requested to leave the workplace. Allowing an employee to continue with their duties or alternative duties when under the influence, weakens any claim that the employee was unable to perform their duties due to being under the influence and that the employment relationship may have been destroyed.
In case law, an employee was dismissed for drug abuse. After working for their family-owned business, the employee ingested a large quantity of “tik” and visited their doctor. The employee informed their employer that they had suffered a “relapse” and asked for help. The employer informed their employee’s wife and wrote a letter to the employee informing them that their employment had been terminated after innumerable verbal warnings for substance abuse. The employee acknowledged that they had taken the drug but claimed that they had been dismissed solely because of their confession and their “cry for help”. The employer conceded that the employee was not given a hearing before their dismissal but claimed that they had been behaving “oddly”, and that they had been dismissed for poor timekeeping.
The commissioner held that poor timekeeping was not the true reason for the dismissal, but that the employee had been dismissed for substance abuse. The commissioner found that employers are not entitled to dismiss employees for addiction to illegal narcotics if they seek assistance and undertake not to offend while at work.
The employee had informed their employer of their problem and had sought assistance. The employer had, on several occasions, refused to send the employee for rehabilitation, and had dismissed the employee without any attempt to help them overcome their addiction. The employer was ordered to reinstate the employee.
It seems that in this case, the commissioner applied the same rules as required by the code of conduct for alcohol abuse. The employer could not prove that the employee used the tik at work.
Employers must apply their own rules and the code of conduct on alcohol abuse. Testing results should indicate whether the percentage of intoxication/influence is based on breath and or bloodstream aligned with the company’s policy and procedure when testing is administered.
What to look for:
Firstly, look at the company’s policy if it has one. Determine how to deal with the case with reference to the policy. If the employer has no policy, apply the code of conduct, schedule 8. Before you can charge the employee, determine if the employee has a dependency problem, and if so, make sure the employee has an opportunity to rehabilitate.
Determine the facts to decide what to investigate. Is the employee under the influence or do they only have it in their possession. Take possession of any physical evidence – the alcohol or the drugs – and lock it away. Talk to any witnesses and take statements. If the person is presumed to be under the influence, do a breathalyser test and remember to keep it as evidence and to testify on the calibration, how it was conducted, and have a witness to be present during the test.
Make sure you have evidence of the physical appearance of the person such as bloodshot eyes, incoherent speech, smell of alcohol, and general appearance.
The next important factor to consider is that of the wording of the disciplinary code – what is the transgression the code identifies, and can you prove that? If dismissal is a possibility, and the person is under the influence, send the person home. There is no use in claiming a breach in the trust relationship where the person continued working.
What must the investigator prove at the disciplinary enquiry?
Present evidence regarding their previous disciplinary record, warnings for misconduct, and particularly for related or similar offences.
Present your physical evidence – the alcohol or drugs that you took possession of, the test results, and how the test was conducted. Produce your witness and let them give their evidence. Link the evidence to the disciplinary code and the sanctions prescribed therein.
Emphasise the seriousness of the offence – the relation to breach in safety rules and regulations. Show where the Occupational Health and Safety Act has been breached. If the employer has a policy on alcohol and drugs, show where the employer’s own policy and procedure on safety has been breached.
If the relationship has been breached, bring evidence to show why the employee cannot be trusted to work anymore. Consider the code of conduct, schedule 8, and determine whether the employee has a dependency problem. If so, treat the case as incapacity as prescribed by the code.
