We asked the experts at the Labour Law for Managers Loose Leaf
for some advice.
You may discipline and possibly dismiss
an employee who uses or abuses alcohol/drugs at the workplace, but not necessarily in each and every case. Develop a policy or rules that regulate how you intend to deal with situations where you find an employee under the influence, or in possession of alcohol/drugs at the workplace.
Make sure your disciplinary rules don't only provide for one type of transgression, i.e. intoxication (or being 'under the influence'). Make sure they list full details.
If an employee is indeed guilty of misconduct when he abuses alcohol at work, then do the following.
Follow these three steps to dismiss an employee who abuses alcohol at work and is thus guilty of misconduct
Step 1: Establish the seriousness of the situation
The minute you suspect an employee is under the influence of drugs or alcohol, investigate the situation, and determine what the employee was doing and the extent of the problem.
Arrange for him to go home if it's clear he is drunk. It may be necessary to have someone take him home if you can see it would be dangerous for him to go home on his own. Advise him that you'll take corrective action when he comes back to work.
If you establish the employee isn't currently drunk but clearly had a bender the night before and still smells of alcohol, judge the working situation.
Look at the following factors:
· How his staying at work will impact other employees;
· How productive he'll be if he stays at work;
· How likely it is that he'll need to communicate with customers; and
· How safe the working environment is for someone in his condition.
Depending on your answers to these questions, you might be better off sending him home and dealing with him the next day. In both cases, make sure you have witnesses when you talk to him!
it's your legal duty to provide your employees with a safe working environment. Therefore, if the presence of a drunken employee in the workplace will endanger any of your other employees, you must send the employee home.
Step 2: Arrange for the employee to attend at your clinic or to be seen by an external doctor or to attend an employee assistance program.
If the employee is drunk, try to find out the reason for his intoxication, either on the day or the following working day. You can do this by sending him to your clinic or to be seen by an external doctor, or to attend an employee assistance program where he can be assessed and the reason for the intoxication can be determined.
If the reason is alcohol dependency (alcoholism), then you must follow the incapacity procedure, which may require more counselling for the employee. If the reason is mere lack of judgment, then follow your misconduct procedure. You can take disciplinary action against him for misconduct.
Step 3: Charge the employee and have a formal disciplinary enquiry
Consider the charges carefully and ensure they accurately relate to the offence. For example, if you charge an employee for being drunk, you must show that the employee was drunk i.e. smells of alcohol, slurred speech, unsteadiness when he walks etc.
But if the charge is that he was under the influence of alcohol, you only need to show his faculties were impaired to the extent that he was incapable of working properly(i.e. he was suffering from a hangover).
You can't find an employee guilty of being drunk on duty if he can prove he stopped drinking eight hours before. Even though he may still be under the influence of, and smells like, alcohol and is suffering from a hangover. Follow the correct procedures for conducting a disciplinary hearing, which must include a consideration of mitigating circumstances.
As a general rule, you shouldn't dismiss
an employee for a first time offence. But, you can dismiss
him if his conduct has serious implications for your business, even if it is the first offence. This is especially true in circumstances where he commits other acts of misconduct while intoxicated, which results in the break down for the trust relationship.
You may also be justified in dismissing him for being drunk or under the influence of alcohol if he has been warned before for the same conduct and repeats it.
With the Christmas party season just around the corner, it's a good idea to revise your substance abuse policy, and remind employees of the company rules.