Upon appointment in a new position in a business or organisation, employees are usually issued employment contracts that contain a myriad of clauses, terms, and conditions. One such clause which often gets overlooked is the "zero tolerance approach to alcohol use".
In practice, intoxication is interpreted to mean "being under the influence of alcohol to a point where a person's physical or mental control is remarkably diminished, and a person's faculties are impaired". A typical example of an alcohol or zero tolerance to alcohol clause may read something like:
"An employee will be deemed as unfit to enter or remain in the workplace or on the premises of the employer in the event that alcohol levels exceed 0.000%."
In industries such as mining, manufacturing, security, and positions which require driving, operating heavy machinery or being of sound mind and mental clarity, a zero-tolerance to alcohol consumption or reporting to work while under the influence of alcohol is a customary clause in employment contracts. Including this clause is important based on the significant risk of injury, death, or damage to the employees, the employer or the public. In certain circumstances, employers may be required to apply different disciplinary action towards an employee who reports to work under the influence of alcohol versus an employee who commences with their duties and is later caught with corroborative evidence supporting intoxication while performing duties. The question that employers need to answer is what a zero-tolerance clause means and what employers are required to do to give effect to such clauses.
In the past, the zero-tolerance rule was highlighted in the case of Shoprite Checkers (Pty) Ltd v TOKISO Dispute Settlement (2015) 9 BLLR 887 (LAC). The Court held that employers are not permitted to rely rigidly on zero-tolerance policies. This approach will include policies relating to alcohol consumption.
In the most recent judgement of Samancor Chrome LTD (Western Cape Mines) v Willemse and Others (2023) ZALCJHB 150, the employee arrived at work and tested positive on two separate breathalyser tests, despite the fact that he denied consuming alcohol on the day or night prior. Unsatisfied with the breathalyser result and potential disciplinary risks, the employee went to a laboratory to conduct blood tests, which resulted in a negative alcohol test result. The employee was dismissed based on the results of the breathalyser. Unhappy with the outcome, the employee referred a case to the CCMA. The employee presented his lab results during the arbitration, which indicated no alcohol in his system, which was not considered or taken into account by the commissioner.
The employee referred the case on review to the Labour Court. The Court found that the use of a breathalyser test without corroborative evidence would be insufficient to prove that someone is under the influence of alcohol. Breathalyser tests can produce false positive results based on various factors. The Court further stated that a breathalyser is a screening tool. However, the evidentiary value requires corroboration and further evidence. The Court went further to state that in companies which have zero-tolerance policies relating to alcohol in the workplace, employees should be given the opportunity to undergo a blood test to verify the results prior to any disciplinary action being taken.
What is significant from the case above is that employers are required to bring new life to their zero-tolerance clauses. This may include providing policies and procedures in the workplace specifying what must be done when alcohol is detected and not simply relying on breathalyser results in isolation. Taking cognisance of the above, employers may consider the following additional practices to enable their zero-tolerance policy to be fully implemented. Examples of active monitoring and testing processes can include:
- An officially appointed person should be required to conduct a visual demeanour test and descriptive report of the intoxicated person – this includes but is not limited to (clarity of eyes, dilation of eyes, speech, walking, standing and smell, etc.).
- The breathalyser apparatus must be calibrated regularly, and calibration certificates must be available for presentation upon each test.
- If an employee blows positive on the breathalyser test, the employee should be continuously monitored while being allowed to wash their mouth, rinse their hands, wait a window period, and take a second test. This is due to residue alcohol from a previous occasion and medication, which may negatively affect the breathalyser result.
- Results from the first and second breathalyser tests and the calibration confirmation should be recorded and witnessed in a first-instance report.
In conclusion, the zero-tolerance clause to alcohol in the workplace will not, at face value, allow an employer to simply dismiss, whereby additional steps have not been taken to support and corroborate the intoxication of the employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.