I received an e-mail from a reader who has to deal with an intoxicated colleague on a daily basis.
Although it is a large company, she has to liaise closely with the particular individual.
She says he always arrives late, is moody, uncooperative and, worst of all, slow. He reeks of alcohol and often slips out for “a quick one”.
According to her, he is generally rude and foulmouthed and seems to have no respect for people, especially his female co-workers. He often has altercations with fellow employees.
The colleague in question is a vital link in their department. However, because of his state, he is often late in completing tasks, resulting in deadlines being missed.
The situation has become unbearable and she wants to know what her employers’ responsibilities are.
Sadly, the above scenario is nothing new. In fact, it is a phenomenon that is on the increase in the workplace.
It poses a particularly difficult situation for all parties concerned as people with alcohol-related problems are notoriously hard to deal with at the best of times.
The law, in itself, is very clear on this matter and describes this type of behaviour as misconduct.
Employers should therefore have a written company policy in place to regulate the consumption of alcohol on and off company premises and this must be communicated to all employees.
If there is no such policy, the employer could find it difficult to take disciplinary steps against someone for breaking rules that do not exist. Although some “rules” are implied, I suggest employers live by the principle: “If it is forbidden, put it in writing”.
If an employee comes to work after having consumed alcohol, the employer must follow a fair procedure to establish whether he/she is guilty of misconduct as this may result in his/her dismissal.
Sufficient evidence of misconduct would be if the employee’s abilities, judgement, reactions, behaviour or other faculties have been affected or impaired.
The degree of drunkenness must be tested and employers are permitted to ask the employee to submit to a breathalyser or blood test. The latter has to be conducted under the supervision of or by a suitably medically qualified person.
Refusal to undergo such tests would be regarded as an aggravating factor, because the employee is in fact being offered an opportunity to prove his/her innocence. The employee’s consent must however be obtained in writing.
The employee is entitled to have a representative present to witness the procedure and the employer should have the same.
In addition to the test, the employer must make a note of the employee’s general appearance and attitude, whether his/her eyes are bloodshot, speech slurred or if he/she is unsteady on his/her feet. Observations must be recorded in writing and signed by the observers.
The establishment of a blood alcohol content that is above the legal limit is in itself not sufficient evidence for dismissal.
Other factors must also be taken into account, including whether or not the employee is able to perform his/her tasks to the required standard, the level of danger to life and limb or the employer’s property, as well as the affect on other employees.
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Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation, including injuries on duty. They also deal with other aspects of the law.
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