THE BAD, THE UGLY, AND ONE OTHER – ALCOHOL SUBSTANCES, AND CRIMINAL RECORDS.
June 2024
For a while, a ‘zero tolerance’ approach to several transgressions or employment-related problem areas, seemed to work. Employers adopted a ‘zero tolerance’ approach towards alcohol and substances, and where an individual had a criminal record, the person was disqualified as a prospective employee. In each of these areas, there have been legal developments that are important for employers to take note of.
Introduction
Employment law constantly evolves, hence the policies and procedures that govern the workplace also need to evolve otherwise the employer’s actions may be deemed unlawful. The ‘zero tolerance’ approach is related to both alcohol and cannabis which under current legislation is legal to consume in certain circumstances.
Determining if a person is under the influence, impaired, or has a diminished capacity because of alcohol or cannabis, is not an easy process. The mere presence of the respective substances in the employee’s body is no longer a sufficient reason to terminate employment. The fact that an employer has a ‘zero tolerance’ policy would not necessarily justify the application. For this discussion, illegal substances are excluded.
SUBSTANCES
Formulating and enforcing a substance policy in the workplace has become a slippery slope and there are important landmark cases that compel employers to re-look and assess the existing policies and procedures that deal with substances.
A substance abuse policy must make provision for both legal and illegal substances because for one, alcohol is not an illegal substance, and it has been some time since the private use of cannabis by adults in the privacy of their home was legalized. The focus of this article is therefore on alcohol and cannabis.
Alcohol
The Samacor Chrome v Willemse & others LC SA 312/2020 deals with alcohol testing using a breathalyzer.
In this case, the employer had a ‘zero tolerance’ policy. The employee blew into the Lion Alcometer device, and it did indicate alcohol on the breath. The employee was subjected to another similar test and the result was the same, detection of alcohol on the breath. The employee was then requested to blow into the device that gave a blood-alcohol reading.
The Employee was dismissed based on the breathalyzer because the employer’s view was that the employee was in breach of the ‘zero tolerance’ policy.
The employee’s laboratory test rendered a negative result, no alcohol was detected. As part of the employee’s defense in court, a medical practitioner testified about the various factors that could bring about a false positive test with the breathalyzer devices that most employers use. The Labour Court found the employee’s dismissal unfair.
The court made a distinction between having ‘alcohol on the breath’ and being ‘under the influence’ to the extent that an employee cannot perform their duties.
The Court said that there must be other evidence apart from just relying on a breathalyzer test, for example:
- Slurred speech
- Red or bloodshot eyes
- Droopy eyelids
- Overly friendly, aggressive, or emotional behaviour
- An unsteady stance
Employers are advised to review their existing code of conduct and specifically review the wording of how substance-related conduct is described. Descriptions like ‘under the influence’ may not be easy to prove.
‘Impairment’ is an alternative, however based on the guidelines from the Samancor case; and the requirement of additional evidence – the following assessment could be helpful:
- If the nature of the work or the workplace is dangerous, a ‘zero tolerance’ policy may be acceptable.
- If the nature of the work or the workplace does not contain any danger, a less stringent policy may be required.
For example, align the alcohol threshold with the National Road Traffic Act 93 of 1996:
- A concentration of alcohol in blood: 0,05 grams per 100 millilitres (all drivers), professional drivers:
- 0,02 grams per 100 millilitres.
- Breath alcohol content: 0,24 milligrams per 1000 millilitres (all drivers), professional drivers: 0,10 milligrams per 1000 millilitres.
Do remember that a breathalyzer test or a drug test with an ‘over the counter’ test/device will be far from sufficient if challenged. The Samacor case already showed that a breathalyzer test with even a more advanced device can render a false positive.
Cannabis
In the Labour Appeal Court matter of Enever v Barlowworld (23 April 2024) overturned the ruling of the Court of First Instance. The Labour Appeal Court gave clarity on how employers should evaluate situations where an employee tests positive for cannabis at work.
In the Enever case, the employee tested positive more than once for Cannabis and although the employee alleged that she used it for medicinal reasons, there was no expert witness testimony before the Labour Court as the Court of First Instance like in the Samacor Case where an expert witness testified. The employee’s dismissal was upheld until the Labour Appeal Court gave another view.
The Court found that:
- The employee was not intoxicated/impaired at work.
- The environment in which she worked did not have safety requirements.
- That the employer’s policy was an ‘unwarranted invasion of privacy.
An employer can not merely decide to implement a ‘zero tolerance’ policy, it should be justified. According to the Labour Appeal Court in the Shoprite Checker (Pty) Ltd v Tokiso Dispute Settlement & Others (JA 49/14) a substance policy should she implemented with appropriateness and proportionality in mind.
It is also important to note that the Court emphasized that each case should be judged on its merits and that each case is different. There may be instances where a ‘zero tolerance’ is fitting and even the slightest presence of a substance may result in a justifiable dismissal.
In the Enever matter, the Labour Appeal Court awarded twenty-four months’ compensation to the employee based on discrimination in terms of Section 6 of the Employment Equity Act 55 of 1998.
Employers should be able to show a nexus between the policy and for example:
- The safety requirements of the work or at the workplace.
- The nature of the work.
- Or other factors that could justify a ‘zero tolerance’ policy.
Although all workplaces are subject to the Occupational Health and Safety Act 85 of 1993, it would not automatically mean that a ‘zero tolerance’ policy is proportionate. The Court in the Shoprite Checkers case, specifically referred to dangerous machinery as a possible justifying factor.
Depending on the nature of the workplace and the work, if an employee by the looks of it seems to be affected/impaired the following is advised:
- There should be a trained male and female Health and Safety Officer on site to administer a drug or alcohol test. In some instances, an outsourced security company administers the breathalyzer at the entrance of a workplace for example at factories. The officer administering the breathalyzer should be able to present their certificate in a disciplinary hearing to show that they have been trained to use the device. The calibration certificate for the device must also be present in the hearing as well as the observation form that the officer completed.
- In any instance where it is suspected that an employee is impaired beyond what is acceptable and allowed depending on the workplace safety requirements; an observation form should be completed to satisfy the Samacor-additional-evidence-requirement.
- If the test, be it drug or alcohol renders a positive result indicating the presence of unacceptable levels of alcohol or the presence of drugs subject to the workplace policy, it is advised to proceed to laboratory/blood test without undue delay. It is advised that the employer provide transport and pay for the test.
- If the employee refuses to undergo any of the procedures, it would be for a chairperson to interpret the evidence and circumstantial evidence.
- It is also advised that an observer is always present to avoid any ‘he-said-she-said’ challenges or tampering with the test.
- An example of a possible alcohol and/or drug-related charge: “Reporting for duty in a noticeable – or detectable (utilizing testing) state of having any intoxicating substance in your body either legal or illegal, prescribed or unprescribed”.
Uncooperative Employees
In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the Employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance because he did not have a drinking problem. His dismissal was therefore found to be fair even on a first offence and with a clean disciplinary record. It was stated that if an Employee denies that he has a drinking problem and refuses assistance, then it is treated as misconduct. It is, therefore, critical that employers do not automatically assume claims of dependency, as this can only be diagnosed by a medical practitioner.
In the matter of SALSTAFF/AIWU OBO Govender and SAA (2001), the Court rules that dismissal may be justified where an employee failed to disclose at the job application stage that he/she has a substance dependency problem.
Illegal drug-related incidents
The use and or possession of illegal drugs at work, for example, Tik, Speed, Opioids, Mandrax, Accid, Heroin, cocaine, and Cannabis (Consumption at home is legal) is a contravention of the Drug Act and a dismissible offence. Please note that an employee may not use or possess Cannabis at work.
Alcohol and substance policies may make provisions for regular or random drug testing, and it’s even recommended to agree to this as part of the employment contract. Most Employers with manufacturing operations or driving/transport operations have mandatory annual medicals that would include a drug screening test. The renewal of, for example, a forklift license also requires a medical inclusive of a drug test.
The Employer can also provide in the alcohol and substance policy that if an Employee appears to be under the influence or possibly impaired he/she may be subjected to a test.
Evidentiary challenges
Although an Employer cannot physically force an Employee to either an alcohol or drug test, a high-risk working environment might require every person, including visitors and service providers, to undergo a breathalyzer test before gaining permission to enter the premises. In a situation like this, the Employee would be contractually required to subject themselves to a daily breathalyzer test because it is what the Employer requires subject to the OHS Act.
Workplace disciplinary hearings are not subject to a “beyond reasonable doubt” onus of proof, such as in criminal matters. Therefore, the refusal to take these tests can be used in defence of the Employer’s case.
A CRIMINAL RECORD AS A DISQUALIFYING FACTOR
The employment requirement of having a clean criminal record was placed under the spotlight in the case of O’Connor v Lexis Nexis (Pty) Ltd(P18/24). An employment relationship is built on trust, this is a Common Law principle. The level of trust that is required will determine if an employer is justified in refusing to employ an applicant based on a criminal record.
In the O’Conner Case, several pieces of legislation are relevant, and most importantly the Protection of Personal Information Act 4 of 2013. An individual’s criminal record and employment history are regarded as ‘personal information’ and are protected; the Constitution of the Republic of South Africa, Act 108 of 1996, protects the right to privacy.
This case stipulates that if the employee is going to work:
- With sensitive information.
- Financial information.
- Be appointed in a senior role.
- Or have high authority.
It may be justified to require a clear criminal record. The inherent requirements of the job will greatly determine if such a requirement is justified.
A situation can also arise where the employer makes the offer of employment subject to the criminal check coming back clean, i.e. a suspensive condition. This is not inherently unlawful if the job requirement justifies a clean record.
Employers must take great care because it is an important technical distinction that will determine if the person was employed and then dismissed or if the offer was withdrawn because the offer itself was subject to a suspensive condition; the latter will then not constitute a termination. (JI Du Preez v South African Local Government Bargaining Council and others C147/15)
THE IMPACT ON YOUR BUSINESS
There is a legal duty for an Employer to maintain a safe working environment, and the consequences of a breach of the OHS Act can have criminal consequences for Employers; on the other hand, a blanket approach to applying a ‘zero tolerance’ towards alcohol, Cannabis and criminal records can result in adverse findings against the employer as well.
As your HR & IR business partner, we recommend that you revise your policies and procedures pertaining to alcohol and substance abuse, to align the policies with the: Safety requirements associated with the workplaceNature of the work itselfEvidentiary requirements as per the recent case lawReview your recruitment approach to criminal records as a disqualifying factor takinginto consideration if the employee will work: With sensitive informationWith financial informationIn a senior role/Or have high authority
REFERENCES
Occupational Health and Safety Act 85 of 1993 | The Medicines and Related Substances Act 101 of 1965 | The Liquor Products Act 60 of 1989 | The National Road Traffic Act 93 of 1996
