How to determine whether the abuse of alcohol or drugs by an employee is misconduct or incapacity
The question often arises as to when alcohol abuse by an employee is misconduct and when it is incapacity.
The Labour Court has held that there are two broad categories relating to alcohol:
- If an employee is an alcoholic and needs help, then this must be dealt with as incapacity.
- If an employee is not an alcoholic but has breached a rule relating to alcohol, the appropriate approach would be to discipline the employee.
In a case that came before the CCMA involving alcohol, the arbitrator found that the dismissal of the employee for misconduct was fair. The employee, a bus driver was found to have consumed some eight times more than the limit of alcohol permitted for driving on roads. The employee denied that he had been drinking and stated that the breathalyser was unreliable. The company had previously counselled the employee, but he had said that he did not require assistance and that he had no alcohol problem.
The Labour Appeal Court has held that an employee is under the influence of alcohol if he / she is unable to perform the tasks entrusted to him / her with the skill expected of a sober person. The nature of the work performed by the employee is a factor which should therefore be taken into consideration. The Court went on to state that a breathalyser test is not necessary, as normal observations in respect of speech, red eyes, the smell of alcohol in the breath and the like could be used to determine alcohol / drug abuse.
The abuse of drugs
Unlike alcohol, the effects of drug use may be harder to identify in performance or behaviour. This makes the employer’s position very difficult. Another complicating fact is that some drugs can be present in an employee’s blood stream for up to six weeks after an employee last consumed the drug. Where an employee does test positive the employer cannot know with any certainty that the employee is “under the influence” to the extent of not being able to perform his/her job.
As with alcohol abuse, the same question as to whether the abuse should be treated as incapacity or misconduct arises with drug abuse. It is therefore advisable that the same test be used.
General considerations when dealing with alcohol or drug abuse
It is not always easy for an employer to know when an employee has an actual drug or alcohol dependency problem or whether it is just a case of isolated acts of misuse. While most employers do not have the required knowledge and expertise to determine whether clinical dependency exists, they can at least form an opinion of the extent of the problem that they as employers are dealing with and how best to manage this.
The following questions may be of assistance in this regard:
- What are the circumstances of the use of alcohol/drugs; i.e. did the employee have a once off binge or does s/he need to use alcohol/drugs every day?
- What is the degree of intoxication?
- Has the employee previously had problems with alcohol/drugs?
- Is there evidence of a long-term dependence on the substance?
- Does the employee acknowledge that s/he has an alcohol/drug problem?
- How did the issue come the employer’s attention? Did the employee come forward of his/her own volition?
- Does the employee want to be helped?
- How is the employee’s use of alcohol impacting his/her ability to work?
- Does the employee’s behaviour place his/her own safety or the safety of others in jeopardy?
Where the majority of the answers lean towards a pattern of alcohol / drug abuse and drunkenness at the workplace, the likelihood of there being a dependency problem is greater and the situation should be managed as a form of incapacity.