Food and Allied Workers Union obo Julies // Unitrans Supply Chain Solutions (Pty) Ltd [2023] (NBCRFLI): Arbitration Award

While everyone enjoys their time off from work, it is usually during this time off that individuals may overindulge. It is important to bear in mind that going to work, while under the influence of any alcohol an individual previously consumed may still affect an individual’s abilities and his/her work output, and possibly place the individual at physical risk within the workplace. 

In the abovementioned matter, the Bargaining Council (“BC”) had to decide if the reason for the dismissal was fair based on the possibility of an employee being under the influence of alcohol when reporting for duty. This case sets clear guidelines for employers to follow in such instances.   

BC Award:

The employee, Julies, worked at an animal feed manufacturing plant since July 2018. As a general worker, he worked twelve consecutive hour shifts at any time during the week. Julies was scheduled to work from Sunday, 30 January 2022 at 6 pm until Monday, 31 January at 6 am. When Julies arrived for his shift at 6 pm, his site supervisor noted that he appeared to be under the influence of what smelt like alcohol. The site supervisor called the manager who came into work to assess/attend to the situation.

Julies was not subjected to a breathalyser test but was instead subjected to a list of checks to determine his intoxication levels, i.e. a Checklist for Assessing Intoxication. While the Checklist involved various mental and physical activities such as inter alia, speaking, writing, and standing on one leg, it did not definitively confirm that Julies was, in fact, intoxicated or under the influence of alcohol while on duty.

The employer had a zero-tolerance policy relating to being intoxicated and/or under the influence while on duty and had previously dismissed employees for such conduct. Julies was aware of this policy and was subsequently dismissed for being under the influence while on duty. 

Julies challenged his dismissal but procedural fairness was not in dispute. The BC Commissioner held –

  1. An employer must justify that a zero-tolerance approach to being intoxicated or under the influence of alcohol in the workplace is justifiable, and each case must be dealt with on its merits, i.e. the duties of the employee, whether dismissal is an appropriate sanction, etc;  
  2. While there may have been a genuine suspicion that Julies was under the influence of alcohol, no breathalyser test was conducted to confirm the existence thereof. The Checklist which was allegedly completed by the employer, while within the presence of Julies, is not sufficient to determine that Julies was in fact under the influence of alcohol;
  3. The evidence given by the various witnesses was not consistent with the employer’s case, and there was no testimony that Julies acted abnormally;
  4. The employer at no stage during the arbitration led evidence around the trust relationship being broken between it and Julies.

The Commissioner held that the dismissal was not fair for lack of fair reason. The employer was ordered to retrospectively reinstate Julies with partial back pay in the amount of approximately R65 000.00. Julies was ordered to return to work on 13 February 2023.      

In conclusion, it is essential to remember that there is a difference between an employee being intoxicated while on duty versus being under the influence while on duty. While both instances may be equally serious, depending on the merits of the matter, it is vitally important to ensure that –

(i) there is a reasonable and genuine justification for having a zero-tolerance policy within the workplace; 

(ii) there must be a reasonable and genuine belief that the employee may be intoxicated or under the influence of a substance before testing the employee; and

(iii) an employee must be tested to confirm whether or not he/she is genuinely intoxicated or under the influence of a substance before considering a disciplinary hearing. 

As an aside, which is linked to point (ii) above, we propose the employer also consider if the employee’s duties and physical safety will be negatively affected due to his/her intoxication or being under the influence of any substance. While warnings may be applicable, where an employer is contemplating a disciplinary hearing with a view to dismissing the employee, concrete evidence of intoxication or being under the influence will be more beneficial to the employer’s case.    

Candace Bachmann – Associate Attorney

Justine Del Monte & Associates Incorporated