Posted By Edmond Furter On February 27, 2010 @ 8:25 pm In African SHEQ News,

 

Alcohol and substance abuse policy enforcement trips up many employers. Some CCMA and Labour Court rulings add to the snares by apparently contradicting H&S legislation.

When the courts appear to contradict law, the rulings often reveal poor health and safety management instead. Sheqafrica.com asked a lawyer, a labour specialist, and an alcohol testing supplier and management system consultant, to discuss and clarify intoxication management issues.

Evidence must be fairly obtained

Lawyer Ina Bezuidenhout, of Advanced Legal and Business Advisors, says indignation about some CCMA rulings and Laoubr Court judgements, like the Astore case, seem misdirected. Judgment is not based on the employer’s right to comply or to act against employees attempting to enter the workplace while under the influence of alcohol, but on evidence submitted in support of an employer’s decision to dismiss an employee.

We do not have sufficient details on reasons for the CCMA ruling, or evidence submitted at the workplace, to comment on the integrity of the Court judgment. On the face of it, it appears to be confusing, and not acknowledging the duty of employees as recorded in the OHS Act, and a blatant disregard for the structures negotiated by employers and employee representatives.

However, judgment in the Astore case seems to have been decided on evidence submitted to prove that the employee was under the influence, and on evidence submitted to the CCMA to prove the validity of the employer’s actions.

Evidence submitted to the Labour Court indicated that the employee in question was tested at a customer’s premises, and that a report from an outside party was used as the basis of dismissal, followed by observations of employer representatives.

If testing, or test reports by outside parties are not provided for in company policies and procedures, such evidence would be inadmissible and contrary to policy, therefore procedurally unfair and on this basis inadmissible in disciplinary procedure, at the CCMA, or Labour Court.

In the event of testing outside agreed procedure, the employer and the legal system must rely on the appearance of the employee and the judgment of officials involved. If this is also not provided for in company policy and procedure, the basis for CCMA award would be evidence considered by the employer when making the decision for dismissal. The CCMA would not consider the right of the employer to act against employees attempting to enter the workplace.

The Labour Court judgment likewise does not mention the employer’s duty under the OHS Act. All references point to the question of integrity of evidence submitted to the CCMA to prove or disprove reasonableness of the employer’s actions.

The Labour Court judgment should be considered as a warning to employers to ensure that they follow agreed procedures when exercising compliance and disciplinary measures, especially when the outcome may impact on employee rights.

The legal position is clear. Employers have a duty in terms of sections 8 and 9 to ensure the safety and health of employees and persons other than employees exposed to the risks at the workplace under their control.

By attending work under the influence of alcohol, an employee is not in compliance with the obligation to ensure the health and safety of fellow workers and other persons at the workplace, in terms of section 14 of the OHS Act.

Although the OHS Act places a duty on employers to ensure that no person under the influence enters the workplace, it does however not prescribe testing methods, testing equipment, or qualifications of testers.

The principles of entering the workplace under the influence of alcohol and any other drug are usually recorded in a workplace policy, with test methods as part of a procedure. These provisions are also recorded in disciplinary procedure, which should be co-signed by employee representatives.

The procedure is usually also described in a health and safety agreement. By accepting employment, employees usually sign an acknowledgement to be bound by company policies and procedures, attend training on these policies and procedures to be informed of rights and obligations. The same applies to buy-in from employee representative structures.

The above documents should be clear on the process, testing functionaries, training and qualifications, and accepted limits. Employers should be able to prove that the agreed principles were followed during testing. A Court ruling should depend only on the amount of evidence presented.

If the assumption is that the Court did not honour or respect company structures, because the procedure was forced on employees by virtue of uneven status between employer and employees, then employers should argue that the procedures were accepted in employee representative structures, and objections should have been made while the procedures were negotiated.

Policy sets tolerance level

Your report correctly point out that testing of employees for being under the influence must not be confused with, or compared with, testing of drivers in terms of traffic legislation, since traffic legislation prescribes an allowed blood alcohol level, while no prescribed limit applies in respect of access to work premises as set out in occupational legislation.

Agreed levels relevant to different sites or jobs, are usually decided on by employers and employee representatives, and recorded in workplace policies and procedures.

Testing options

Employers may appoint anyone to perform breath analysis (breathaliser or breathalizer) testing, or even appoint a person and a witness to judge the sobriety of employees by appearance and reactions, according to the Occupational Health and Safety Act and the General Safety Regulations. Specialists advise employers not to use unaided judgement (see additional comment by David Evans below).

Most employers hire external security services to control site access and perform random or scheduled alco testing before site entry, usually by automated electronic breath analysis

Alcosafe GM Dave Evans comments on blood alcohol content (BAC) testing; “It is not a good idea to let corporate clinics perform blood alcohol testing, since the clinic should be seen as a haven, and not a functionary for disciplinary action.”

The law does not prescribe any category of employees, or qualifications, to do breath alcohol testing. Breathaliser devices are simple to operate and the results are easy to read, but workplace policy should clarify fair rules, roles, and procedures in advance.

Suppliers of breath analisers should nevertheless train operators in breath alcohol testing procedures, and train employers in how best to integrate alcohol testing programmes into other aspects of health and safety management systems, like workplace culture, policy adoption, access control, enforcement, health and wellness programmes, employee assistance, and disciplinary procedure.

Some employers, employees and even lawyers, confuse health and safety measures with the blood alcohol testing regime that applies to traffic law enforcement. Traffic regimes should not necessarily apply to workplace health and safety procedures, although the minimum of health and safety management includes compliance to relevant legislation.

Case law alarm

The implications of some court case findings alarm labour relations and human resources practitioners.

SA Labour Guide Forum health and safety expert Tinus Boshoff refers Sheqafrica.com readers to an article by the late Derek Jackson in Labour Guide, commenting on a court judgement in the matter between Astore Africa (Pty) Ltd v CCMA and others (2008 1 BLLR 14, LC, cited in http://phpbb.labourguide.co.za/viewtopic.php?f=16&t=4037).

An employer had dismissed a truck driver for being drunk on duty, but the CCMA at arbitration ordered reinstatement of the employee, and the Labour Court confirmed the CCMA ruling.

The CCMA Commissioner stated that the employer had failed to prove that the driver was incapable of driving. The Labour Court found that the CCMA Commissioner’s decision, that the employer had failed to prove that the employee was impaired by intoxication or unable to perform his duties, was rational and justifiable.

The Labour Guide had commented; ”How much more scientific evidence is needed from dozens of scientific sources, available on the internet, to show that the consumption of alcohol impairs judgement, reflexes, and reactions? Surely employers should not have to back up their decisions in such matters by presenting scientific evidence.”

Current legislation should be sufficient to not require case law, and to not burden employers with the onus of proof of grey areas like ‘how impaired’ and ‘how much impairment should not be allowed’.

”The ruling poses further important questions”, Derek Jackson had written. “What standards should employers apply to test whether or not an employee under the influence of alcohol, is capable or incapable of performing certain duties?

”The legal limit in terms of the Road Traffic Act is 0.05%. Does this mean that if a truck driver’s breath gives a reading of 0.49, that you should allow him to drive a truck or forklift, or operate an overhead crane? If such an employee were involved in an accident, would the employer be liable? My view is, not at all.”

Health and safety managers, lawyers, human resources practitioners and organised labour agree that employers must have a written Alcohol and Drug Abuse Policy in place. Workplace policies usually require breathalyser testing on suspicion of intoxication, and state a ‘zero tolerance’ rule.

There are different opinions about the legitimacy and application of ‘zero tolerance’ and summary dismissal, however.

The policy must clearly stipulate testing procedures. Before the test procedure starts, the employee is entitled to a representative to assist him or her, and the employer should have a representative present as a witness.

The test procedure should require the employee to blow on a reliable and calibrated breathalyser, preferably one that indicates blood alcohol content (BAC) based on breath alcohol content. Such instruments cost around R3500 to R4000.

The policy must require the breathalyser to be calibrated in the presence of the employee and his or her representative, in order to avoid arguments regarding the accuracy of the instrument.

Note should be taken of the employee’s appearance, for example, bloodshot eyes, slurred speech, attitudes of aggression or abuse, smell of alcohol. The employee may be required to walk on a white line painted on a floor with arms held out horizontally to test balance.

The policy must include the provisions of the Occupational Health and Safety Act, 85 of 1993, in particular General Safety Regulation 2A, regarding intoxication; “Employers… shall not permit a person who is, or appears to be, under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.” Appearance alone could bar entry or work.

It further states that no person at a workplace shall be under the influence of, or have in his or her possession, or partake of, or offer to any other person intoxicating goods or drugs.

A positive breathalyser test result of any magnitude, either above or below 0.05%, should enable employers to call the zero tolerance policy into effect. A sip of liquor is enough to bar entry or work.

Enforcement versus dismissal

Sheqafrica.com editor Edmond Furter comments; “Employers may deny employees access or work, on suspicion or on positive testing of intoxication or any form of incapacitation. However it may be unfair to summarily dismiss an intoxicated employee.

“Legislation and workplace policies that make a single instance of intoxication a dismissable offence, are unrealistic, and open to labour relations abuse.

“The CCMA Commissioner usually rules on the fairness or unfairness of a dismissal, and not on the rights and obligations of employers to manage health and safety at work.

“Reinstatement of a summarily dismissed employee may seem to be at odds with safety legislation, but could instead indicate a poor health and safety management system, for example, deficient or inconsistent policy, contracting, training, assistance, or enforcement practice.”

David Evans comments;

Regarding the right of employers to judge intoxication by appearance and reactions, these are very unreliable indications of a person’s state of sobriety. Bloodshot eyes, slurred speech, unsteadiness, aggression and so on can be caused by a number of factors, like conjunctivitis, balance problems and certain prescribed medications.

Likewise, smells of acetone in the breath of diabetics, or ketones in the breath of people on low calorie diets, could be mistaken for alcohol fumes. There are also other negative factors that dictate against judging appearances.

Workplace policy is necessary to ensure fairness and to avoid resistance.

Regarding drivers, the cab of a vehicle is a workplace if an employee is paid to drive the vehicle. The OHS Act requires that no intoxicated person may enter or remain in a workplace.

Regarding the CCMA case, this is horrendous. Courts should understand the relationship between low levels of intoxication and increased chance of incidents.  I agree with Boschoffs analysis completely.

Regarding liability, employers should be liable, since the OHS Act clause on intoxication clearly states that it is the onus of management to prevent even one intoxicated person to enter or remain at work.  In practice however this may be difficult to enforce in some situations.

Regarding ‘zero tolerance’, it may be good as an idealistic policy. In practice it may be unfair as it would not take into account ‘mouth alcohol effect’ where false positive readings could be obtained from persons who have taken cough mixture, mouth wash, other medication, or chocolate liquers for example.

I believe that a sip of alcoholic liquor should be enough to bar workplace entry.

However, there are different opinions about the legitimacy and application of ‘zero tolerance’ and summary dismissal. Some organisations apply ‘zero tolerance’ rules to certain employees doing safety sensitive jobs.  A higher level such as 0.020% or 0.050% blood alcohol content (BAC) may then apply to other employees. Discrimination on whatever basis was shown to cause negative employee reaction.

Regarding breathalisers, reliable and calibrated breathalysers that indicate blood alcohol content (BAC) based on breath alcohol content, cost around R6000, and more if a printer is added.

Regarding calibration, it is not practical to calibrate breathalysers in the presence of employees.  Most employees would not understand the process. Gas required for calibration is costly and most users do not require it. The supplier should supply calibration certificates, if they are approved by the manufacturer to undertake calibration and are effectively trained in the process.

Regarding dismissal, a single instance of intoxication is very seldom a dismissible offence. The Labour Relations Act recommends that counselling and rehabilitation should, not must, be considered.

In the case of certain occupations like train, bus, crane and forklift drivers, chemical process controllers and other occupations, dismissal on a first offence could be desirable, provided that the employees have attended an awareness programme and committed themselves to the policy.

David Evans is GM of Alcosafe.


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