In South Africa, alcoholism is classified as a disease, and you, as an employee may not be dismissed based on an illness. In simple terms, your employer may not fire you if you are an alcoholic and if you consume alcohol at the workplace. Your employer is obliged to handle your case in a manner that is similar to an ill or disabled employee and your employer should provide treatment or assistance to you.
However, there is a difference between alcoholism and just drinking having a drink: just because you drink does not mean you are an alcoholic. Misrepresenting your condition as alcoholism can result in the company viewing a simple misdemeanor as breaching the employer/employer trust relationship – meaning they can no longer trust you, and as such have no choice but to terminate your employment.
Does this mean you can consume alcohol frequently?
No, this does not mean that you can abuse alcohol at work, as being drunk at work constitutes misconduct, which can lead to your dismissal.
If you are unsure of the extent of consuming alcohol at the workplace or during working hours, then you should refer to your employment contract or company policy on alcohol, alternatively contact your employer to seek clarity.
What if you return to work or to the office after a Friday afternoon lunch, drunk?
While many firms say there is nothing wrong with consuming a glass of wine or a beer during your lunch break, provided that it does render you unfit for work or impair your ability to fulfill your duties at work, this is not the stance adopted by all companies. In fact, the opposite is true. Many more firms anow frown upon any use of alcohol. They practice what is called a “zero tolerance policy”. If your firm is such a firm then consuming ANY alcohol during or before work can be a dismissible offence.
This is particularly true in large corporate firms with strict guidelines.
Further your role at the firm is also important. If your work requires you to drive, or to operate heavy machinery, then consuming alcohol at any level should be avoided during or proceeding work. It is unsafe and you could endanger the safety of others.
However, according to labour law, you cannot simply be dismissed for drinking on the job or being drunk at work. The company still needs to follow disciplinary procedures.
What are the procedures for dealing with workplace drunkenness the company should follow?
First an allegation against you needs to be made. This can either be by a colleague who suspects inebriation, or security when they are conducting their day to day duties. This allegation will then initiate the investigation. Management will be involved, and the veracity of the allegation will be assessed to determine if it is actionable.
If it is, the company should then attempt to establish some level of privacy, either by meeting with you privately in the office, or in an area out of the genal staffs observable references. This is not always possible depending on the level of intoxication. The more intoxicated, the more difficult. However, they should at least try.
The company will then further develop on the Investigation. The investigation could include asking you to submit to some type of sobriety test, as in a breathalyser, or in exterminates, a blood test. Your failure to comply can be construed against you as insolence and be used against you. It is not necessary for you to be present for all of the investigation – the company may rely on testimony – either your direct admission, or your colleagues who could smell it on you, video or audio recording. The end result could be a combination of both.
Generally during you will be expected to leave the premises after the initial investigation, and be asked to return the next day when you are sober. They may even be suspend you immediately pending the outcome of the investigator. However, your suspension must by law be on full pay.
Depending on the company policy, the employer may then decide on the extent of the action it may or may not take against you. They will also have to consider your defence. It is possible that you have a drinking problem, in which case the employer may choose to take corrective steps and to intervene to assist, However, being drunk is not only caused by alcoholism – it could just be a once off over indulgence on your part. In such a case the employer may view it in terms of misconduct – a charge that could warrant sanction or dismissal.
Once you have been charged, you are still entitled to all your rights, including 48 hours to prepare for your hearing
What are my rights? Can they force me to submit to a blood test?
This is determined by not just your contact of employment but also by your consent. The constitution enshrines the right of bodily integrity. If you do not consent, or the evidence is taken against you forcefully, they may have exceeded their authority.
Can they just dismiss me if I have a drinking problem?
In the unfortunate event that you are charged, remember that dismissal should be a last resort. Your employer should consider alternative options such as rehabilitation, counseling, investigating the extent of the alcoholism problem (if any), or providing you with a warning. However, if they practice zero tolerance, and you have been made aware of it, they could be left with no choice but to dismiss you summarily. This option is most true if your work entails you operating heavy machinery or similar.
(This article is provided for informational purposes only and not to provide legal advice. For more information on the topic, please contact our offices.)
