Claims of having an alcohol dependency is often seen as a “get out of jail free card” for employees facing disciplinary action – but the reality is more complex. Many assume that an employee’s admission of an alcohol dependency problem should automatically trigger an incapacity process. In truth, while companies do have a responsibility to support an employee’s journey to recovery, the employee also carries the responsibility of proving their addiction is genuine. Alcoholism cannot simply be used as an escape from accountability. Both the employer and the employee have a role to play in handling this issue fairly.

Why is this relevant to your company?

South Africa’s drinking culture is one of the most intense globally, which has serious implications for employers across various industries. Each individual forming part of the nation’s drinking population consumes an average of about 28.9 litres of pure alcohol per year, ranking South Africa fifth worldwide in alcohol consumption per capita (Business Tech). High levels of binge drinking contribute to this average, making up 60% of total drinking sessions, which has far-reaching effects on productivity, healthcare and workplace safety.

Adding to the concern, according to the International Society of Substance Use Professionals (ISSUP), a staggering 58% of road deaths are linked to alcohol use, highlighting the broader social and economic impact of excessive drinking. This is not merely a statistic; it is a factor that affects everything from employee attendance to healthcare costs. During the COVID-19 pandemic, for instance, alcohol-related trauma cases surged following the lifting of the alcohol ban, as did domestic violence incidents, further demonstrating the extent of alcohol’s impact.

Employers may also face challenges due to the high prevalence of alcohol-related disorders, affecting anywhere between 7.5% and 31.5% of the population (ISSUP). These disorders can significantly impact workplace attendance, increase incidents of misconduct, and contribute to negligence, ultimately compromising productivity and safety. For companies, these challenges underscore the importance of taking proactive measures such as implementing employee assistance programmes, providing health education, and adjusting workplace policies to mitigate alcohol’s detrimental effects on both individual employees and overall organisational performance. Alcohol dependency is a real problem which is very common in South Africa. The question however is what qualifies as alcohol dependency?

What qualifies as alcohol dependency?

According to a social development article by the Western Cape Government, Alcoholism means that the drinker continues to drink despite the repeated negative effect on the person’s health, relationships, finances, and other life areas.

While moderate alcohol consumption may pose minimal risk, misuse or excessive drinking can have serious consequences for the individual. Not everyone who drinks heavily develops alcoholism, but alcohol dependence, or alcoholism, is a disease marked by distinct symptoms, including:

Based on this, the following questions need to be asked to the employee to establish whether he/she has an alcohol dependency:

1. Does the employee have difficulty controlling their drinking habits?
2. Do they notice an increased tolerance, needing to drink more to feel the effects?
3. Are there withdrawal symptoms when they are not drinking?
4. Do they tend to drink more to alleviate withdrawal symptoms?
5. Are there strong cravings for alcohol?
6. Have they experienced occasional relapses after trying to reduce or stop drinking?

According to the Western Cape Government, if an employee experiences / relates to more than five of the above symptoms, it indicates alcoholism.

How to manage a situation in which an employee claims to be dependent on alcohol?

Typically, employees dependent on alcohol are identified through repeated breathalyser tests, witness accounts, or surveillance cameras capturing them drinking. In rare instances, employees may also report their peers or confess their own dependency. The crucial question is how to respond, whether during a hearing or in a casual conversation. This includes situations where alcohol is found on the premises, an intoxicated individual is present, or someone has alcohol in their system.

1. First things first, get proof 🧾!

Employers are encouraged to always get proof. This proof may include:

• Observation tests / reports:

•  Monitor employees for signs of alcohol-related behaviour.
• Approach employees privately to discuss observed behaviours. Maintain confidentiality and avoid assumptions.

• Alcohol tests (Breathalyser / blood test):

• Test employees for alcohol levels if there is reasonable suspicion or following incidents involving machinery or safety concerns.
• Ensure results are handled with strict confidentiality.

• Witnesses / footage

2. Once proof has been obtained, a disciplinary hearing must be scheduled 🗣️.

This is a crucial step where the employee will have the opportunity to state their case and an independent chairperson can evaluate the facts. During the hearing it should be determined whether the employee indeed consumed alcohol and whether they have a dependency problem.

If test results confirm alcohol consumption exceeding permissible limits, a disciplinary hearing will be initiated on the grounds of misconduct. During the hearing, it is crucial to assess whether the employee’s behaviour aligns with indicators of alcohol dependency, as outlined in this article (and ideally incorporated into the company’s policy following this review). Should alcohol dependency be identified, the disciplinary process may transition into an incapacity discussion. However, this process is complex and will be elaborated on in the subsequent point.

3. Determine if the employee contravened a company rule and whether it is due to misconduct or due to an alcohol dependency 🍺.

The question which needs to be asked during a disciplinary hearing involving alcohol is whether the employee drank because of social / informal reasons or whether it was due to an alcohol dependency.

When determining whether to address an employee’s alcohol use as misconduct or incapacity, a company should assess the nature of the employee’s relationship with alcohol, as emphasised in the Transnet Freight Rail v Transnet Bargaining Council case. In this case, the court found that addressing alcohol dependency—a recognised medical condition impacting control over alcohol intake—as an incapacity issue, aligns with the Code of Good Practice: Dismissal.

This approach allows for support measures, including counselling or rehabilitation, instead of immediate disciplinary action. If the employee’s behaviour involves voluntary intoxication without dependency signs, however, it may constitute misconduct and warrant standard disciplinary procedures. This raises the critical question: Can an employee avoid accountability for misconduct simply by claiming to have an alcohol dependency?

Werksmans Attorneys’ article regarding alcohol abuse in the workplace refers to a case where this “get out of jail” attempt can be addressed. The case of Superstone Mining (Pty) Ltd v Kuebu and Others highlights critical considerations when dealing with allegations of alcohol dependency in workplace misconduct. This case involved an employee dismissed for being intoxicated while on duty. The employer, operating in a diamond-processing business, had a zero-tolerance alcohol policy, emphasising workplace safety and trust. Although the employee alleged alcohol dependency during the disciplinary process, the employer dismissed him for misconduct due to a lack of evidence supporting his claim.

When the matter was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), the commissioner initially ruled the dismissal unfair, suggesting the employer should have investigated the dependency claim further. However, the Labour Court overturned this ruling, asserting that:

1. Policy Compliance: Where an alcohol or drug policy exists, employees are responsible for utilising support structures offered by their employer when facing dependency issues.
2. Proof of Dependency: Employers are not obligated to treat intoxication as incapacity unless credible evidence of alcohol dependency is provided.
3. Safety and Trust: Intoxication at work poses serious risks, especially in safety-critical industries. Thus, maintaining workplace safety and trust is paramount.

The next common question which is asked is whether employers can request medical proof of dependency, seeing that it is classified as personal information.

Employers should use evidence, such as medical records or behavioural assessments, to distinguish between these scenarios. By referring to precedents like the Transnet case, companies can ensure fair, supportive and compliant management of alcohol-related issues in the workplace.

To differentiate clearly:

To assess alcohol dependency accurately, it is essential to explore several key areas of an employee’s behaviour and lifestyle. Questions that delve into these areas are particularly helpful in identifying patterns, motivations and consequences associated with drinking. This approach allows employers to distinguish between casual drinking, social drinking and more problematic or dependent use. By evaluating specific aspects of alcohol consumption and its impact on personal and professional responsibilities, the company can make informed decisions and offer the appropriate support or interventions.

Below are some questions that can be asked to assess the key areas:

If an employee proves they have an alcohol dependency, the employer should handle the situation with confidentiality and respect. The employee should be offered support, such as referral to an Employee Assistance Program (EAP) or rehabilitation. Employers are encouraged to accommodate the employee’s condition, which may include adjusting work duties or offering time off for treatment. The employer should also follow any workplace alcohol policies, ensuring the employee is treated fairly and given the opportunity for recovery. Disciplinary action may be considered if the employee’s behaviour affects work, but the employer must first try to provide support. If necessary, a return-to-work plan should be in place after treatment. Dismissal should only be a last resort after reasonable accommodation and support have been exhausted. This is however only applicable if the employee can prove their alcohol dependency.

The onus of proof which lies with the employee

In South Africa, there are cases where employees have claimed to have alcohol problems but failed to provide sufficient proof. For instance, courts have often ruled that mere acknowledgment of alcohol dependency does not automatically protect an employee from dismissal. Employees seeking to defend against disciplinary action due to alleged alcohol use must substantiate their claims with credible medical evidence.

Examples:

The case of Superstone Mining reaffirms that intoxication at work with absent evidence of alcohol dependency, constitutes misconduct subject to disciplinary action. Employers are not required to treat every instance of intoxication as incapacity and may request evidence of dependency to substantiate claims.

In conclusion, recent case law in South Africa underscores the critical need for employees to provide compelling medical evidence to substantiate claims of alcohol dependency. Without such documentation, employees face serious repercussions, including potential dismissal. The legal framework surrounding these issues emphasises a thorough process when addressing addiction claims, requiring employers to document all steps taken to assist the employee and engage meaningfully in discussions about their condition. Ultimately, if an employee cannot adequately support their claim of alcohol dependency, employers may have legitimate grounds for disciplinary action, which safeguards the rights of employees while maintaining the operational integrity of the workplace. This balance is essential to ensure that addiction issues are handled fairly and responsibly in the employment context.

Joubert and Associates specialises in guiding companies through the complex process of handling workplace incidents involving potential alcohol dependency. Our team assists in conducting fair and compliant disciplinary hearings, helping to identify signs of dependency, and ensuring that the correct procedures are followed in line with legal requirements and company policies. By providing expert advice and thorough documentation support, we enable businesses to navigate these sensitive issues responsibly, protecting both employee rights and organisational integrity.

Article written by Allen Stroebel

References:

https://businesstech.co.za/news/lifestyle/332909/south-africa-has-some-of-the-heaviest-drinkers-in-the-world/  
https://www.issup.net/knowledge-share/resources/2021-02/demand-alcohol-south-africa-during-national-lockdown
https://www.westerncape.gov.za/substance-abuse/sites/substance-abuse.westerncape.gov.za/files/atoms/files/Alcohol%20Abuse%20ENG.pdf
https://labourguide.co.za/misconduct/alcoholism-and-the-workplace
https://www.niaaa.nih.gov/health-professionals-communities/core-resource-on-alcohol/alcohol-use-disorder-risk-diagnosis-recovery
https://www.saflii.org/za/cases/ZALCPE/2015/12.pdf
https://www.werksmans.com/legal-updates-and-opinions/alcohol-abuse-in-the-workplace/