Most companies have alcohol related policies which clearly state that the company does not condone the possession or use of alcohol whilst on duty, nor does it condone employees reporting for duty under the influence of alcohol.  It is not often that any mention is made of employees who report for duty with alcohol in their system. Reporting for duty under the influence and reporting for duty with alcohol in your system are two separate charges and should be treated as such.

The aforementioned policies are often labelled “Zero Tolerance policies”. These policies provide for severe disciplinary action, often dismissal, to be taken against an employee upon committing a transgression of the policy.

What we frequently find in practice is that an employee is charged with “Reporting for duty under the influence of alcohol.” When the employer is asked to explain why the employee is charged with same, the employer often refers to a breathalyzer test which shows the employee had alcohol in his/her system.

The Labour Appeal Court in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC), confirmed that to prove that an employee reported for duty under the influence of alcohol, the employer must be able to show that the employee’s faculties were impaired to such an extent that he/she could not perform his/her duties. Breathalyzer results are not sufficient to prove same as you could have alcohol in your system without your faculties being impaired. It is suggested that, in addition to the breathalyzer, an observation report is conducted by the employer and a witness to prove that the employee’s faculties were impaired.

If an employer wishes to introduce a Zero Tolerance Policy which will result in severe disciplinary action being taken against an employee who reports for duty with more than 0% alcohol in his/her system, the policy must expressly provide for same.

Employees should be appropriately charged when being accused of alcohol related offences and it is accordingly suggested that the charge of reporting for duty with alcohol in the system is always charged as an alternative to reporting for duty under the influence of alcohol. This will ensure that an employee obtains a disciplinary record for alcohol related misconduct despite the employer being unable to prove that the employee’s faculties were impaired.