Employers often seek to justify the dismissal of employees who have reported for work under the influence of alcohol, or those who use alcohol or drugs at the workplace with the zero tolerance approach, that they have taken against the use of alcohol and drugs at the workplace.
Many employers have established policies that prohibit the use of alcohol and drugs in the workplace or its employees reporting for work when they have alcohol or drugs in their blood system or whilst they are under the influence of alcohol.
The main objective of these policies is to ensure the safety and welfare of employees and visitors of the company. Zero tolerance policies seek to convey the message that, unless the employees are able to show that the rule has not been violated, a single infringement will result in their summary dismissal. The Labour Court has confirmed that a rule prohibiting the use or possession of drugs and/or alcohol at the work place is a reasonable rule for purposes of item 7 of the Code of Good Practice: Dismissal.
For an employer to be able to use its zero tolerance policy to justify the dismissal of an employee who has reported for work with alcohol or drugs in their blood system, it is important that the employer charges the employee with contravention of its zero tolerance policy and not being under the influence of alcohol.
Whether a commissioner will consider dismissal as an appropriate sanction for the contravention of the zero tolerance policy will depend on the facts and most importantly the wording of the policy.
Recently in Mthembu v Key Management, a commissioner in the Dispute Resolution Centre for the Motor Industry Bargaining Council was tasked with determining the appropriateness of the sanction of dismissal for an employee who pleaded guilty to consuming dagga whilst at the workplace.
Mr Mthembu, an assistant diesel mechanic, was charged with smoking dagga on his employer’s premises and was subjected to a disciplinary hearing for contravening the employer’s disciplinary code which provided,
“Alcohol and Drugs
Violation of policy may lead to disciplinary action, up to and including immediate termination of employment.”
Although Mr Mthembu had been caught in the act and had pleaded guilty to consuming dagga at the workplace, he disputed the fact that dismissal was an appropriate sanction for such a first offence.
In determining whether Mr Mthembu’s dismissal was appropriate, the commissioner took into account item 7 of the Code of Good Practice on dismissal which lists the guidelines to be considered in cases of dismissal for misconduct.
The commissioner confirmed that the rule prohibiting the use or possession of drugs or alcohol at work was a reasonable one. However he found that, from the simple reading of the employer’s alcohol and drug policy and the use of the discretionary word “may”, it was clear that the policy could not be construed as one of so-called “zero-tolerance”.
This is seen from the commissioner finding that:
- when determining whether dismissal should always or necessarily follow for misconduct, it was irrelevant in the circumstances to base such determination on whether the misconduct was a criminal offence or not; and
- by taking Mr Mthembu’s previous written warning which had expired, as well his final written warning into account when determining the sanction, shows that the chairperson of the disciplinary hearing did not regard Mr Mthembu’s current misconduct as so serious that it warranted dismissal.
In the absence of a zero tolerance approach towards the use of dagga, the commissioner found that dismissal was not appropriate in the circumstances. Consequently Mr Mthembu’s dismissal was found to be substantively unfair.
Although the commissioner reinstated Mr Mthembu, Mr Mthembu did not go unpunished for his behaviour as the commissioner found that he should be harshly sanctioned and makes reinstatement only effect from the date of the award and also awards him a final written warning.
It is clear from this arbitration award that for an employer’s policy on alcohol and drugs to be considered as a zero tolerance policy it should make it clear that the consequences of its contravention will be always be dismissal.
However, as the Labour Appeal Court in Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and other [2015] 9 BLLR 887 (LAC) has confirmed, commissioners are required by the Code of Good Practice: Dismissal to only accept a zero tolerance policy if the circumstances of the case warrant the employer adopting such an approach.
It is therefore not guaranteed that the dismissal of an employee for the contravention of a zero tolerance policy will be considered fair.
