Dear Business Partner,

There are three popular HR questions I often receive during the holiday season:

1. What should I do if one of my employees turns up to work, high as a kite or under the influence of alcohol?
2. We’re facing a busy period. Can I force my employees to work overtime to meet demand?
3. How should I tackle sickness absence, especially those that I suspect might faking it?

In this newsletter we will look at QUESTION 1. We will unpack the other two on our social media platforms during the rest of the week, be sure to follow us on Facebook, Instagram, or LinkedIn.

What should I do if one of my employees turns up to work, high as a kite or under the influence of alcohol?

The Labour Court held that everyone is entitled to use cannabis in their own space for recreational purposes. However, reporting for duty under the influence, could lead to serious consequences.

Let’s compare two recent CCMA rulings.

1. Employees in a particularly dangerous workplace environment (involving heavy machinery, vehicles, and timber and hence a risk of fatality), should have a zero-tolerance policy when it comes to workplace safety and substance abuse. An employee was dismissed after being tested positive at work, admitting that he smoked weed 2 hours before clocking in and that he knew of the zero-tolerance policy and of the dismissal risk for contravening it.
2. An employee (a “picker” in a cosmetics and fragrance business) arrived late for work, smelling like weed. After a disciplinary hearing he was dismissed, but the CCMA re-instated him on the basis that although he had tested positive for cannabis there was no evidence that his ability to perform his work had been affected.

• Every case will be different, but at the very least employers should have in place workplace policies, appropriate to their business conditions and requirements. Ideally your policy should state that no person who appears to be under the influence will be allowed to enter or remain at the workplace
• Health and safety remain the responsibility of the employer. (Occupational Health and Safety Act)

So, what do you do when an employee comes to work, and it appears that they have consumed alcohol or drugs?

1. Ensure that a witness is present.
2. The employee is entitled to have a representative present before the test commences.
3. You are well within your rights to request an employee to undergo a breathalyser test or take the employee to a medical practitioner. The employee must give permission.
4. Also take note of other appearances, bloodshot eyes, slurred speech, attitude, walk on a white line etc (these are circumstantial evidence)
5. If you suspect an employee is under the influence, it is best to send them home.

Wishing all Business Owners a very Peaceful Holiday Season.

We are taking a break from 24 December 2022 – 13 January 2023.
For emergencies, please phone 087 135 0780.

Arina Fyfer
AF CONSULTING
082 745 6779 / arina@af-consulting.co.za

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