We are dealing with a case at the moment where an employee (driver) was suspected of having driven the company’s vehicle while under the influence of alcohol. The employer immediately requested the driver to undergo a breathalyser. The employee was then requested to accompany them to a police station so that further tests could be taken. The employee refused the further tests. The employer’s witnesses all testified at the disciplinary hearing with regard to the demeanour, blood-shot eyes, unsteady walking and behaviour. All the witnesses stated that they thought the employee was drunk. The employee was dismissed and referred the matter to the Commission for Conciliation Mediation and Arbitration (CCMA). The Commission thereafter heard all the same witnesses and decided that the employee was not proved beyond all reasonable doubt to be drunk and therefore the dismissal was unfair. This ruling has been taken on review to the Labour Court and the parties still await the outcome of the Labour Court. Clearly, the Arbitrator was wrong. The law does not require an employer to show beyond reasonable doubt that the employee was drunk.
The employer merely has to show on a balance of probabilities that the employee was incapable of performing his duties. The rules are clear in that the Disciplinary Code normally does not allow any employee to be under the influence of any drugs or alcohol at the workplace. The rules also normally require the employee to be suspended immediately and for a disciplinary hearing to be held at a later stage. If in fact the employee was shown to be drunk at the workplace, then this would normally mean dismissal. In an interesting case, Exactics-Pet (Pty) Limited v Petalia, the employee reported to work while under the influence of liquor. The CCMA Commissioner held that the employer could not rely on an observation of the employee’s physical condition.