How to determine if an employee is under the influence

In general, employers can consider the following symptoms in order to determine whether an employee is under the influence of alcohol:

• Red and bloodshot eyes with enlarged pupils;
• Slurred and incoherent speech;
• Change in behaviour;
• Staggering, i.e. the employee is disoriented;
• Delayed reaction and coordination;
• Breath smells like alcohol.

How to act when an employee is under the influence:

1. Call the employee aside, preferably to an office. Ensure that a witness is present.
2. Determine whether the employee is under the influence. Request the employee to blow into an alcohol tester. If you do not have such a device, you can take the employee to a physician for blood tests to determine his/her alcohol level.
3. If none of these methods are available, or if the employee refuses to give his/her cooperation and permission, it is vital to record his/her behaviour. Ask witnesses to also record their observations, which must be in writing.
4. Send the employee home for the rest of the day, without pay.
5. Follow the correct procedure as per your disciplinary code. Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.

Disciplinary hearing

If a disciplinary hearing is held, it is important to follow the correct procedure, to ensure fair procedures and substantive fairness. In labour legislation the burden of proof weighs lighter than in criminal cases. Therefore the employer only has to prove on a balance of probabilities that the employee was under the influence of alcohol during working hours. During the disciplinary hearing all witnesses that observed the symptoms must be present to testify. Alcohol and drug offenses in the workplace are very serious offences and are the employer’s responsibility to address. If an accident occurs in the workplace and the employee was under the influence of alcohol or drugs, the employer will be held responsible if he/she failed to act against such an employee. To maintain discipline in the workplace, it must be applied consistently. Clear rules in the workplace are paramount in creating a working environment with limited conflict and increased productivity.

Alcohol abuse is a social problem common amongst many workers. When an employee is found guilty of being under the influence during working hours and admits to having a problem, it is the duty of the employer to establish if the cause of the substance abuse problem is related to working conditions in any way. If so, the employer should review the conditions if necessary. Furthermore the employer must assist the employee to undergo counselling and make time available for rehabilitation. This can be seen as unpaid leave without placing the employee’s position in jeopardy. Alcoholism is widely accepted as a disease and should be treated as such.

An alcohol policy

A policy informs employees of the rule/s in respect of a certain topic. The employer puts these rules in place in order to ensure the smooth and efficient running of his/her business operations. Policies are not underwritten by labour legislation, but define the employer’s own rules, which must be reasonable, for the workplace.

The aim of an alcohol policy is to ensure that all employees are aware of the rules in terms of alcohol in the workplace and that corrective and progressive discipline is applied. The policy should be clear and stipulate the test procedure, e.g. a breathalyzer test for alcohol or a urine test for drugs. Through this policy the employer can also acquire the employee’s consent to undergo these tests. Alcohol and drug offenses in the workplace are very serious offences and are the employer’s responsibility to address.

How to implement a policy:

When a new employee is appointed, policies are implemented together with his/her employment contract. When employees are already employed, policies can be implemented in various ways:

• Have a meeting with all the employees to discuss the policy. Take note to complete a signed attendance register to prove that employees are aware of the policy.
• Circulate the policy via e-mail or per hand – take note to have proof of receipt.
• Display the policy on a communal notice board accessible to all employees, e.g. in a canteen, changing rooms, etc. where employees are sure to see it.

It is important that the employer must be able to prove that the employees are aware of the policy, especially when the employer intends to take disciplinary action.

According to the American Council for Drug Education:

• Nearly 3 out of every 4 substance abusers are employed;
• Substance abusers are five times more likely than other workers to injure themselves or co-workers and cause 40 percent of all industrial fatalities;
• Substance abusers raise costs and reduce profits;
• Substance abusers are also ten times more likely to miss work;
• Substance abusers are five times more likely to file a worker’s compensation claim;
• Substance abusers are 33% less productive.

The Employee’s responsibility:

A female employee is entitled to four consecutive months’ unpaid maternity leave, during which she can claim benefits from the Unemployment Insurance Fund (UIF). Maternity leave may commence four weeks prior to the expected due date, or any other date as determined by a medical practitioner or midwife. For at least six weeks after the birth of a child, the employee may not work, unless a medical practitioner or midwife certifies that the employee may return to work. In the event of a miscarriage in the third trimester or in the event of a still birth, the employee is entitled to six weeks’ maternity leave.

It is also the employee’s responsibility to:

• notify the employer within a reasonable time of the pregnancy, but no later than four weeks prior to the commencement of maternity leave.
• claim benefits from the UIF. She may apply at the offices of the Department of Labour, or she may register electronically and complete the documentation on the UIF website.

What is the employer’s responsibility?

Every employer has an obligation to create a safe working environment for all employees and an employer may not force or allow an employee to work under conditions that are dangerous for the unborn child or for a nursing mother. During a period of six months after birth, while the employee is nursing, the employer has to provide the employee with suitable alternative employment if there is a possibility that damaging conditions exist in the workplace that may have a negative influence on the employee’s health.

It is also the employer’s responsibility to:

• ensure that all UIF payments are up to date;
• provide the employee with the following information and documentation prior to the commencement of maternity leave, enabling her to proceed with her claim:
  • UI 2.7-form
  • UI 10-form
  • UIF registration number

Employers have the following questions:

• Can the employer calculate an annual bonus (if applicable) pro rata?
  In the Contract Cleaning Sector an employee is entitled to an annual bonus and an employer will have to pay the full bonus if the employee was on maternity leave, as pregnancy does not interrupt employment. If a partial bonus is paid because the employee was on maternity leave, it may be seen as unfair discrimination based on pregnancy.

• How does maternity leave influence an employee’s annual leave?
  The Basic Conditions of Employment Act states that an employee is entitled to 21 consecutive days’ annual leave. An annual leave cycle is a period of 12 months from commencement of the employee’s term of service or the completion of a previous leave cycle. The employee remains in the service of the employer during maternity leave and there is no interruption in service. Therefore the leave cycle is also uninterrupted and the employee is still entitled to her annual leave.

• Can male employees apply for maternity leave?
  Male employees are not entitled to maternity leave and can apply for family responsibility leave and annual leave, if available, when a child is born.

Be proactive:

We strongly recommend that employers act proactively and implement a policy and procedure to regulate conduct between the employer and employee in this regard. Ensure that the policy clearly outlines any additional benefits other than UIF as agreed upon, if applicable. The policy can also make provision for sufficient time for the employer to appoint and train a suitable person for the maternity leave period. A fixed term contract of employment may be used for this period.

To ensure that labour risk is sufficiently limited and managed, it is advisable to make provision for a clause in female employees’ contracts of employment that regulates maternity leave to prevent any uncertainty and disputes.

Please contact the LWO at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for more information and/or advice in this regard. We are available 24/7.

When is an employee a deserter?

Desertion is when an employee who is absent from work for more than five days, without notifying the employer and with no intention of returning to the workplace. Absence where the employee does not turn up for work at all, can be very difficult to manage. All employees have an obligation to inform their employers of their absence by any means possible. It is very seldom that there are no means whatsoever available of notifying the employer of the absence.

What must the employer do?

It is extremely important that the employer must be able to prove that the employee has no intention of returning to work. Therefore the employer must attempt to contact the employee in order to establish the reason for the employee’s absence, to urge the employee to return to work and also inform the employee of the consequences of his/her absence. To have proof of these attempts to contact the employee, we advise employers to send an sms or a letter to the employee’s last known address. It is the employee’s duty to notify the employer of a change of address.

After the initial attempts to contact the employee, disciplinary measures can be taken if the employee does not return to work. The employer must send a notice of disciplinary hearing to all last known contact details of the employee. A hearing must be held and may proceed in absentia, after which the employee may then be dismissed.

If the employee does return to work, the employer may request reasons for the employee’s absence and failure to notify the employer. Should the employee be unable to provide valid reasons, the employer may proceed with disciplinary action as per the disciplinary code. Valid reasons for not being at work and failing to inform the employer, could include hospitalisation or arrest for an offence which is not work related.

The disciplinary hearing

During the disciplinary hearing the employer must prove the desertion and provide evidence attesting to the employee’s unauthorised absence, as well as the steps taken by the employer to contact the employee. The chairperson at the hearing then evaluates all evidence presented and proceeds to make a finding. When the employee is found guilty of absenteeism, the employer must notify the employee of his/her sanction according to the disciplinary code.

There are various factors to consider when deciding on the appropriate sanction in cases of desertion:

• length of absence;
• reason for absence;
• attempts made by the employee to contact the employer during his/her absence;
• previous warnings for absenteeism;
• whether there is a rule or policy requiring the employee to contact his manager/employer regarding his absence;
• the employee’s position and type of work done; and
• whether the employer had to replace the employee.

Should the employer pay the deserter up until the date of dismissal?

The principle of no work, no pay applies. The employee is only entitled to payment of wages up to the last date that he/she physically worked. Any accrued leave pay due to the employee at the time of dismissal should also be paid.

Employees who desert the workplace, often approach the Commission for Conciliation, Mediation and Arbitration (“CCMA”) stating unfair dismissal. The onus is on the employer to prove that a fair process was followed and that the assumption that the employee did not intend to return to work was reasonable under the circumstances. It is therefore important to follow the prescribed steps to manage labour as a business risk effectively.

Contact the LWO Employers Organisation at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for information or assistance. We are available 24/7.

Substantive fairness – for what reasons can the employer retrench employees?

There are three basic reasons that can lead to retrenchment:

• Economic reasons
  This refers to when a business is no longer in the financial position to employ all current employees any longer due to a variety of reasons that can include the minimum wage, economy, recent drought, amended legislation impacting on the cost of doing business, entry of competitors into the market, etc.
• Technological reasons
  Progress in a sector often introduces new technology that can result in making existing jobs redundant. Progress can refer to new techniques and methods of completing tasks quicker, technological inventions, new machinery and mechanisation that can have a direct impact on the number of employees needed.
• Structural reasons
  For a business to adjust to a changing environment whether due to challenges or progress, restructuring takes place regarding changes in the workforce, which can lead to positions becoming redundant. Structural changes can also follow when a business makes strategic changes in terms of its vision and goals. When a business makes structural changes, these changes are reflected in the organogram or organisational chart.

Procedural fairness – following the right procedure

The Labour Relations Act (LRA) specifies a very strict procedure which is crucial to follow regarding retrenchment. It is important that employers take note that the terms and conditions of employment may not be amended unilaterally. Steps to be followed in the retrenchment procedure should always include:

• Notifying employees
  If after careful consideration of all circumstances, the employer decides to proceed with retrenchment as a last option, employees must be notified by means of a written memorandum, that must contain specific information as per the LRA, giving employees at least 48 hours’ notice enabling them to prepare for the consultation with regards to other workable solutions and general input. If an employee is a member of a trade union, the trade union should also be notified.
• Consultation
  Consultation allows both parties to engage in discussions to consider alternatives to retrenchment, minimise retrenchments, establish timeframes and reduce the negative impact of retrenchment. The employer should in all good faith keep an open mind throughout the process and seriously consider proposals put forward by employees. Meetings should be held individually with all possibly affected employees as well as the trade union where applicable.
• Implementation after consensus
  The LRA does not define the period over which consultations should extend, but parties must keep consulting and engage in discussions until consensus is reached. If no alternative to retrenchment was identified and the employer has no other option but to proceed with the retrenchment process, retrenched employees are entitled to the following payments where applicable:
  • severance pay;
  • notice pay;
  • outstanding leave; and
  • any other outstanding amount the employee is entitled to

Most cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) pertain to unfair dismissal. Employees are more informed about their rights and the procedures to follow when they feel they have been wronged by the employer. In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf.

We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal, retrenchment and general discipline in the workplace, by acting proactively.

What is insubordination

• Expect employees to always act in the best interest of the employer
• Establish a fixed standard in terms of quality and quantity
• Give reasonable and lawful instructions
• Implement clear rules in the workplace
• Apply discipline
• Say ‘no’
• Change terms and conditions of employment (subject to following the correct procedure)

Types of insubordination

Insubordination can be related to a wide variety of offences and is mainly linked to disrespectful behaviour. Common offences include:

• Failing to obey a reasonable and legal instruction
• Refusing to obey a reasonable and legal instruction
• Non-compliance with established rules and procedures
• Distributing unauthorised propaganda – information, especially of a biased or misleading nature, used to promote or publicise a particular political cause or point of view
• Insolence – any disrespectful attitude towards the supervisor, a more senior person or a client
• Abusive language – this offence is more serious when it is aimed at race, gender, religion or any other arbitrary ground
• Playing games – this offence is more serious when such action endangers the safety or health of others, or the good spirit and smooth running of work

Steps to follow:

We advise employers to follow these steps to identify misconduct referring to insubordination:

• • Investigate
    During the investigation the employer must establish whether the employee acted in an insubordinate manner. The employer should also gather evidence in this regard and determine the seriousness of the offence, including (possible) consequences.
  • Consult with the employee
    When consulting with the employee, the employer should determine if the offence was due to the employee’s negligence or with intent. It is important to give the employee the opportunity to present more information and explain the situation from his/her point of view.
  • Determine the sanction
    The sanction is determined by the seriousness of the offence. To establish if the sanction is fair, the employer must consider the facts of the case as every case has its own merits. It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.
  • Take disciplinary action
    A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.

In conclusion

A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace to be followed by employees. Every employee must have a detailed job description to clarify duties and the employer’s expectations.   Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.

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The Basic Conditions of Employment Act defines an employee as:

• “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration; and
• any other person who in any manner assist in carrying on or conducting the business of the employer”

The Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) however broadened the definition of an employee to also include job applicants.

An employment relationship commences as soon as an employee accepts the offer of employment.  The job applicant will then be regarded as an employee and can the employer not merely terminate the contract of employment.  The employee will be in a position to refer the revocation of the contract of employment to the CCMA as an unfair dismissal dispute.

Employers should caution against the revocation of contracts of employment.  If the employer discovers that the employee made a misrepresentation prior to the date on which the employer made an offer of employment, disciplinary steps should be followed.

Contact the LWO when you consider terminating any contract of employment to ensure the correct procedure is followed.

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