Numsa on behalf of Williams and Robertson & Caine (Pty) Ltd (2005) 26 ILJ 2074 (BC)

Principle:

The state of being 'under the influence of alcohol' exists when an employee is no longer able to perform the tasks entrusted to him / her with the skill expected of a sober person.

Facts:

An employee's supervisor smelt alcohol on the employee's breath. The employee denied being under the influence but admitted to drinking on the previous day, a Sunday. He requested a breathalyzer test which showed the presence of alcohol although the employee was below the legal limit for driving. He was subsequently dismissed.  The arbitrator relied on the test of being 'under the influence' as whether an employee is no longer able to perform the tasks entrusted to him / her with the skill expected of a sober person. The evidence in this case showed that the employee (a joiner) was required to show a high degree of skill. His job was technically complex and, given the nature of the tools used, was extremely dangerous. Applying these factors to the test, the arbitrator was satisfied that the employee was under the influence of alcohol.  As there was a clear pattern of misconduct and because progressive discipline had no effect, the arbitrator upheld the dismissal as a fair sanction in these circumstances.

Extract from the judgment:

[At 2081G]   The Act [OHSA] does not define what being under the influence is. The Act merely stipulates than an employer may not allow an employee to remain at the workplace if that employee is or appears to be under the influence. [Referring to case law the arbitrator continued] ...an employee would be "under the influence of alcohol" if he was no longer able to perform the tasks entrusted to him with the skill expected of a sober person. Whether an employee was unable to perform such task depended on its nature.

[At 2083A]   Both the applicant and his representative made much of the fact that the applicant was not drunk... that the breathalyser indicated that the applicant was below the legal limit and referred to the Road Traffic Act in this regard.

[At 2083E] It may be difficult and impractical for an employer to provide a yardstick as to when an employee will be under the influence...The fact that the applicant may still have been able to perform his duties is not relevant in determining whether or not he was under the influence.

[At 2084A] The evidence before me indicates that the applicant's job required a high degree of skill, was technically complex and given the nature of the tools he used, his job was extremely dangerous...I am of the view that if one applies the abovementioned test to the facts of this case, the applicant was under the influence of alcohol.