SA labour law is surprisingly lax on employees being drunk at work
It should go without saying: you shouldn’t be drunk at work. But contrary to popular belief, it takes more than just being under the influence of alcohol to be dismissed in South Africa.
While alcohol and drug abuse is seen as a form of misconduct under the Labour Relations Act, testing positive for alcohol does not automatically mean you are under the influence, notes Cliffe Dekker Hofmeyr’s Hugo Pienaar and Elizabeth Sonnekus.
An employee’s drunkenness must be proven by either sight, smell and/or the conduct of the employee. These include factors showing drunkenness, including aggressive behaviour, slurred speech and bloodshot eyes.
However, the degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work, the legal experts said – the onus is on the employer to prove this, and they cannot rely on expert witnesses.
This extends to breathalysers taken at work. A recent court decision noted that despite testing positively for alcohol on a breathalyser apparatus, a positive outcome does not necessarily prove that the employee is under the influence of alcohol.
“The real test is whether the employee’s competence to perform their work has been impaired. In this case, the employee was able to perform his tasks and the court held that the dismissal was unfair”.
Further, if it emerges that an employee is dependent on alcohol, the employer has an obligation to consider providing counselling and assist the employee.
There is, however, one big exception to this rule, the experts warn.
If your employer has adopted a zero tolerance policy to alcohol and has indicated that being drunk will result in summary dismissal, you are left with little wiggle room as an employee.
Read: Drunk drivers could soon face the same prison time as rapists and murderers
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