This article delves into a recent case that sheds light on the significance of prompt and consistent disciplinary action when dealing with employees who report for duty under the influence of alcohol. While it may seem surprising that an employee, previously warned for a similar offence, was not dismissed for intoxication-related misconduct, the heart of the matter lies in the delayed disciplinary process.

Intoxication in the workplace and employees reporting for duty under the influence are considered serious forms of misconduct. Employers routinely grapple with such offences. Recently, there have been cases involving intoxicated employees that have garnered attention in the labour arena. At first glance, these cases may seem troubling for employers, but it is crucial to examine them closely before jumping to immediate conclusions.

In a recent case, Tiger Brands (Pty) Ltd v AFADWU obo Ben Mabizela, the Labour Court ruled that dismissing an employee who reported for duty while under the influence and had previously received a final written warning for a similar offence was unfair. At first glance, this decision may appear surprising. After all, how can an employee’s dismissal be deemed unfair when they repeatedly engage in misconduct related to intoxication, a matter viewed as highly serious?

The heart of the Tiger Brands case does not solely revolve around the issue of intoxication; instead, it centres on the delay in taking disciplinary action. The applicant, Mr. Mabizela, tested positive for alcohol on January 7, 2019. In April 2019, he tested positive for alcohol once again. However, it was not until June 2019 that Mr Mabizela was called to a disciplinary hearing for the January 2019 incident, which resulted in him receiving a final written warning. Subsequently, in October 2019, Mr Mabizela faced another disciplinary hearing for the April 2019 positive alcohol test, leading to his dismissal.

During the Arbitration, the Commissioner expressed astonishment at the employer’s prolonged six- and seven-month delays in concluding disciplinary actions, labelling it as “gross mismanagement of the disciplinary process.” Additionally, it was argued that if the employee and employer had continued working together for six months from the date of the offence until the date of dismissal, the employer’s claim that the employment relationship had irreparably broken down was questionable.

The Consolidated Employers Organisation has addressed issues related to intoxication and reporting for duty while under the influence. It is essential to note that each case should be evaluated based on its unique merits. In this instance, the dismissal was deemed unfair primarily due to the delay in the disciplinary process rather than solely focusing on the employee’s intoxication.

It is essential for employers to note that the Tiger Brands case highlights the importance of prompt and consistent disciplinary action when addressing employee misconduct, even in cases involving intoxication. Employers should ensure that their processes are efficiently managed to avoid potential legal challenges and uphold fairness in the workplace. It also serves as a reminder that each case should be evaluated on its unique merits, regardless of the nature of the charge.

Tips:

• Ensure that a proper disciplinary code is in place, specifically related to the use of an intoxicating substance and alcohol.
• Ensure that disciplinary action is taken as soon as reasonably possible and refrain from waiting too long to discipline employees who commit offences.
• Consider all circumstances regarding alcohol testing and do not merely rely on a breathalyser test.

Written by Kenneth Lennox, Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)