In 2009, Heather Clark, one of South Africa’s top female surfers of all time was severely injured in a hit and run accident by a drunken driver. She was not the first to be hurt or killed in this way and unfortunately she will not be the last.
In recent times, the police have been coming down hard on drunken driving. If you are tested in a road block and found to be over the legal limit of 0.05, you are likely to face a night in jail, a R2000 fine and a criminal record.
If you have lost a loved one or have had someone close to you maimed by a drunken driver, you will probably be all for the stance being taken by the authorities on drunken driving. You would therefore probably be astounded to hear of the judgement in Unitrans Fuel & Chemical (Pty) Ltd and NN Naidoo & Others Labour Court (unreported – Case No.D197/04). Unlike criminal law, labour law is based on fairness and criminal law standards do not always apply in labour matters.
Employers therefore need to be cautious when dealing with substance abuse. In the Unitrans case, a driver was tested and found to have an alcohol level of 0.55 (a criminal offence). When tested an hour later, it had fallen to 0.45.
According to the judgement – “Although his breath had a distinct smell of alcohol and his eyes were watery, his speech was normal and his gait sure. He appeared confused, frightened but polite and cooperative and he submitted willingly to the test.”
The employer dismissed him on these facts but the CCMA commissioner found this to be unfair. The commissioner believed the employee’s argument that he had been taking medicine (isn’t it amazing how many employees make this claim when they are tested positive for alcohol?).
A particular fact that influenced the commissioner was that the driver was not provided with comfortable sleeping facilities; that he had consumed what he believed was medication to enable him to sleep and that the bottle containing the substance consumed did not reflect that it contained alcohol.
Also of significance was that the supervisor had allowed the driver to drive the vehicle back to Durban after testing. That suggested that the employment relationship had not broken down.
In reviewing the case, Judge DJ Pillay found that the commissioner had reviewed all the material evidence before him and came to the conclusion that the driver was not under the influence of alcohol. That he had drawn a different conclusion or different inferences than those sought by the applicant did not render the award reviewable. The application for review was dismissed with costs.
So where does that leave employers, particularly employers of drivers?
Well, first of all, employers need to get their ‘ducks in a row’:-
- Implement a substance abuse policy and make sure it is communicated to everyone. (If you do not have one, contact us and we will supply you with a policy free of charge).
- If you have employees operating vehicles and moving machinery, make sure that your policy requires that everyone reporting for shift be tested (i.e. everyone entering the premises, including managers and visitors should be tested).
- Allow for another test to be done half an hour later – per the Unitrans example above.
- Ensure that an Intoxication Checklist is completed and signed by witnesses detailing other symptoms of intoxication (co-ordination, speech etc.).
- Spell out the circumstances whereby different levels of sanction will apply. For example, if an employee is tested before getting into a vehicle or going onto plant where there is moving machinery he will get a final warning. If he is found to be under the influence on the plant or behind the wheel of a vehicle he will be dismissed.
- Send the employee who has tested positive for alcohol home and tell him to report back the following day for an investigation into the incident. Make sure however, that he does not drive and that he can get home safely. Alternatively, make him sleep it off and send him home when he is sober. Either way, he is not fit for work and he should not be paid for the day.
- Make sure that managers and supervisors are aware of the consequences of allowing an employee who has tested positive for alcohol to continue working. This effectively sends out the message that the employee is not intoxicated and he is fit for work. I am aware of at least two other examples where managers allowed ‘intoxicated’ employees (one a driver) to continue working. In both cases the disciplinary enquiry chairpersons found the employees not guilty of being intoxicated.
The fact that the driver was allowed to drive a vehicle after being tested positive, probably more than anything else, resulted in Unitrans losing its case. Perhaps the disciplinary enquiry chairperson should have come to that conclusion in the first place, thereby saving the company a lot of time and money?
- Be consistent but realise that the circumstances are not always the same. Check out the employee’s story. One of our senior consultants chaired a hearing where an employee claimed to have taken medicine which caused him to fail the alco-test. The employee was asked to bring the medicine which was tested. It was found to contain alcohol but the same product purchased by management did not – the employee had added brandy to his medicine!!
- Do your homework and take advice before dismissing an employee!