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MISCONDUCT - UNDER THE INFLUENCE OF, OR HAVING CONSUMED, ALCOHOL, LIQUOR OR DRUGS

An employer is prohibited from allowing, in terms of the Occupational Health and Safety Act (OHSA), any person who has consumed, or who is suspected of having consumed, alcoholic liquor or drugs, to enter the premises.


Any person who has consumed, or who is suspected of having consumed, alcoholic liquor or drugs who is already on the premises, may not be allowed to remain on the premises in terms of the act.


What to look for:

Firstly, examine the employer’s policy or procedure regarding such behaviour. Establish, by means of proper testing – for example with a breathalyser – that the employee had consumed liquor.


If the employee refuses to take the test, you cannot force them to do so – but their refusal will count against them. It should be noted however that a refusal to test might indicate deception, but not guilt. Therefore, a negative inference may be drawn from a refusal, but not guilt.


Follow your company policy for the test. Make sure you decide the correct charge for misconduct. Is the employee in contravention of a rule not to exceed a certain limit? Is there tolerance or zero tolerance according to your policy? If so, you need to prove the degree of drunkenness or rather the limit by way of a breathalyser test. If the employee is being charged with consuming alcohol during working hours, it will be sufficient evidence to show that they had consumed or is suspected of having consumed alcoholic liquor or drugs.


Always take note of other indicators – bloodshot eyes, alcohol smelled on the breath, unsteadiness on the feet, inability to walk a straight line with the arms held out horizontally, aggressive attitude, out of character behaviour, dishevelled appearance and so on.


Take statements from any witnesses.


Find out if the employee is taking any form of medication containing alcohol, which may have produced the symptoms.


Examine the employee’s previous disciplinary record for similar offences.


What must the investigator prove at the disciplinary enquiry?

Show your test results and call witnesses to testify.


Emphasize that your conclusion that the employee had consumed alcoholic liquor or drugs is based on the “balance of probability.”


This means that the test results – a reading on the breathalyser, the bloodshot eyes, the alcohol smell on the breath, the unsteadiness on the feet, and the inability to walk a straight line with the arms held out horizontally, all entitle you to conclude, on the balance of probability, that the employee had consumed alcoholic liquor or drugs.


Emphasize that you are not arguing that the employee was drunk, or that they were under the influence of liquor or drugs. You are only showing that they had consumed alcoholic liquor or drugs, and their entry to the workplace was a contravention of the OHSA, general regulation 2A, was a contravention of your employer’s policy and procedure, and was a violation of safety rules and regulations.


Emphasize that allowing such an employee to enter the premises could endanger the safety of others or compromise the safety of the employer’s equipment. State also that the element of trust in the employment relationship has now been seriously compromised, and it is doubtful whether the employer can continue to employ such a person.


If the employee refused to take the test, you can emphasize this and point out that they were given an opportunity to prove their innocence – but they refused that opportunity, and therefore you conclude that they had an arterial motive to refuse – namely to hide the fact that they had been consuming alcoholic liquor or drugs.


It is the responsibility of the employer to assess and ensure that an employee is not able and not allowed to commence with work when an employee presents or is suspected, to have consumed alcoholic liquor and or drugs at the time or during the course of reporting for duty.



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