With the festive season soon approaching, many employees are counting down the days until they can close their business doors for 2023 and commence their annual leave. Unfortunately, for some, the festive season is either peak work season based on the business operations requirements, or they must continue working on a skeleton staff complement throughout the festive season. The security industry, retail trade and tourism sector are but a few examples of employees of businesses that operate throughout the festive season. While people are out shopping, socialising and partying, the temptation for working employees to join in the holiday festivities becomes more prevalent. During the festive season, employers are reminded to ensure that their staff are familiar with the disciplinary code and procedure of the business as well as to understand the employer’s obligations in terms of health and safety in the workplace.

In terms of The Occupational Health and Safety Act 85 of 1993, Section 2(a) states that:

• An employer shall not allow any person who is or appears to be under the influence of intoxicating liquor or drugs to enter and remain at the place of work.
• No person at a place of work shall be under the influence of, have in their possession, partake of, or offer any other person intoxicating liquor or drugs.

In considering the above, it is clear that there is a duty on employers to ensure that employees are “fit” for duty.

In Marasi v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd (2023) 10 BLLR 1043 (LC), the Applicant, a communications technician who was denied access to the workplace when he tested positive for cannabis exceeding the limit of the employer’s tolerance level. The Applicant had just returned to work after attending a traditional healer’s course, whereby it was common knowledge that cannabis was used during the training. The Applicant argued that he was unfairly suspended without pay and discriminated against and claimed R 250 000.00 in damages for the impairment of his dignity.

The employer in this matter denied that the Applicant had been unfairly suspended and further conceded that policy in the workplace would impact some employees more than others based on their cultural undertakings; however, they had an obligation to uphold health and safety in the workplace and therefore argued that the policy was not discriminatory. The Court held that the Applicant in this matter had not been unfairly suspended but rather prohibited from entering the workplace based on his unacceptable intoxication levels. The Court went further to point out that the Applicant in this matter could not be accommodated additionally by working from home as same rules would have applied. As a result, the Court dismissed the Applicant’s case.

In Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 (LC), an employee who was a yard official was dismissed for arriving at work under the influence of alcohol. Transnet’s disciplinary code held that alcohol-related misconduct was deemed to be very serious and could warrant dismissal. At the time of the employee’s dismissal, she was on a valid final written warning for similar misconduct. At the arbitration, the employee disputed her dismissal based on the fact that she was not afforded any opportunity to obtain rehabilitation in terms of Transnet’s internal Employee Assistance Program. The Commissioner held that the Applicant’s warning was about to lapse, and the fact that the employer had a rehabilitation program and did not offer it deemed her dismissal unfair.

Unsatisfied with the outcome, Transnet took the arbitration award on review. The Court held that the award made by the Commissioner was not based on the facts of the case as the Applicant had never raised an “alcohol problem” prior. The Court further advised that employers should introduce alcohol and substance abuse policies in the workplace and further discipline employees for breaching such rules. If an employee has a dependency problem, this should be brought to the employer’s attention immediately and dealt with in terms of an internal dependency program.  Employees should, however, be warned not to ‘cry foul’ in terms of dependency to try and avoid disciplinary action, as this can cause further severe repercussions.

Written by Tammy Barnard, Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)