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Alcohol in the Workplace: Misconduct vs. Incapacity

Under the framework of the Occupational Health and Safety Act 85 of 1993, Section 8 highlights the paramount responsibility of employers toward their employees. Employers are mandated to provide and uphold, to the extent that it is reasonably practicable, a working environment that is safe and free from any risks to the health of their employees. In this context, when an employee disregards a zero-tolerance policy for alcohol or substance abuse stipulated in their employment contract, they are not only breaching company rules but also undermining the very essence of Section 8 of the Act, which underscores the need for a secure and healthy workplace. Such violations can consequently be classified as misconduct, as they jeopardize the fundamental duty of employers to protect the well-being of their workforce and maintain a safe working environment. It is imperative that both employers and employees recognise the significance of these policies and legal provisions to ensure a workplace that prioritises the health and safety of all.

Misconduct:
Alcohol or substance abuse by an employee can be considered misconduct if the individual fails to adhere to a clearly defined zero-tolerance policy outlined in their employment contract. In such cases, the employee is in violation of explicit company rules, making their actions a form of misconduct. A zero-tolerance policy serves as a strong indicator of the employer’s expectations regarding alcohol and substance use in the workplace, leaving little room for ambiguity. Consequently, employees who knowingly breach this policy can be subject to disciplinary actions in accordance with the company’s established procedures, which may include written warnings or even termination of their employment. It is important for both employers and employees to understand and respect these policies to maintain a safe and productive work environment.

Incapacity:
When an employee consistently arrives at work smelling of alcohol or under the influence, it may raise questions about potential dependency issues. In such cases, the Labour Relations Act considers alcoholism and drug abuse as forms of incapacity. In cases of incapacity, employers must take a different approach. Rather than using disciplinary measures, employees struggling with dependency problems should be offered counselling and rehabilitation. Employers need to actively assist these individuals in overcoming their dependencies and may recommend participation in a rehabilitation program.
In accordance with the Labour Relations Act and the Code of Good Practice on Dismissal, it’s crucial to emphasize that the onus primarily rests on the employee to disclose alcohol and drug addiction issues to their employer proactively. This disclosure serves as a pivotal step in addressing addiction-related challenges as incapacity rather than misconduct. Attempting to raise addiction as a defence after facing misconduct charges is unlikely to be successful. Employers expect employees to act in good faith and promptly disclose such issues, allowing for a more compassionate approach involving counselling and rehabilitation. The Act and Code emphasise the importance of a proactive, open, and collabourative approach between employers and employees in addressing addiction, which ultimately contributes to a more supportive and effective resolution of the issue within the workplace.


In summary, it’s essential for employers to have well-defined policies in place to address alcohol and substance abuse in the workplace. Such policies should distinguish between misconduct and incapacity, offering assistance and support to employees with dependency problems while applying disciplinary measures for others.
Regularly assessing whether an employee genuinely has a dependency problem is also advisable to ensure fair and consistent treatment. Striking the right balance between addressing misconduct and incapacity is key to maintaining a safe, productive, and supportive work environment.

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