When, how and why a drunk employee can be dismissed

Feb 22, 2017

If an employee returns to the office or work premises after a Friday lunch, drunk, what should the employer do?

  • Fire/dismiss him on the spot?
  • Give the employee one week’s notice and then he must be out of there?
  • Give him a letter of dismissal first thing Monday morning?

If an employee is an alcoholic and an employer did any of the above actions, the employee could take the employer to the CCMA and the employer could end up paying a hefty compensation.
In South Africa, alcoholism is classified as a disease and any person cannot be dismissed based on an illness. That implies that an employer cannot fire an employee if he is an alcoholic or addict. The employer has to handle addicts like sick and disabled people, and treatment should be part of the employer’s strategy.
However, being drunk at work constitutes misconduct and an employee can be dismissed. However, a company alcohol policy must be in place and communicated to all employees. It must regulate the consumption of alcohol on and off the company premises.
Three steps that an employer is legally obliged to take when dealing with an employee that is drunk at work
Step 1: Three factors that must be considered when contemplating dismissal
When dealing with a drunk employee, the decision whether or not to dismiss him depends on the following three factors:
1. The employer’s work practice, e.g. what behaviour is generally accepted in the workplace.
2. The nature of the business (e.g. a bus driver is subject to stricter rules and more serious penalty if he drives a bus under the influence, than a secretary who deals with office work).
3. The harm caused to the employee and other employees, third parties. For example, a truck driver who is drunk and transports goods is a danger to himself, his passengers and other drivers on the road.
Step 2: Alcohol problem or once-off offence?
If an employee has an alcohol problem, this usually affects his work performance, his ability to do his work and his work relationships. An alcohol problem is classified as a ‘sickness’ in South Africa because it affects behaviour and performance. So, an instance where an employee is drunk because he is an alcoholic has to be treated as a case of incapacity.
Misconduct on the other hand as a result of being under the influence of alcohol/drugs is usually a once-off offence. The employee might not be capable of performing his work safely, diligently and productively because he is under the influence, or he may become violent, abusive or exhibit offensive behaviour. This would constitute an example of misconduct.
Step 3: Treating incapacity issues the legal way
When it is established that a problem of incapacity is due to alcohol abuse, it must firstly be ascertain:

  • Whether or not the employee is capable of performing the work;
  • The extend of the employee’s capacity;
  • The possibility of adaptation to the work situation; and
  • The possibility of securing a suitable alternative job.

Secondly, options as an alternative to dismissal such as rehabilitation and counselling need to be investigated, especially if it is known or suspected that a dependency problem exists. The employer could also consider a suspended sanction at a disciplinary enquiry pending counselling and rehabilitation and the possible successful treatment of the problem.
Step 4: Treatment options. What the law says an employer MUST do
It is generally not known that it is the employer’s responsibility to offer an employee treatment if he/she has an alcohol problem. A range of treatment and rehabilitation options exist and can last from a minimum of 28 days up to three months.

Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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