Arangie and Abedare Cables (2007) 28 ILJ 249 (CCMA)
Where there is a known rule that obliges an employee to take a random alcohol test or to leave the premises, the persistent refusal to do so will constitute gross insubordination justifying dismissal.
Facts:
The employer’s code provided that no employee should be allowed on the company’s premises if suspected of being under the influence of alcohol. The employee was fully aware of the employer’s practice of random testing for alcohol. An employee was not obliged to take the test but if he refused he would be required to leave the premises. The employee refused to blow into the scanner but said he would be prepared to take a blood test. He also refused to leave the premises although instructed three times to do so. He was found guilty of insubordination and dismissed.
At the CCMA the employee’s explanation that he refused because he believed the scanner gave false readings was rejected. A blood test took one day and was therefore not suitable for use at the workplace. The commissioner found that the employee had deliberately disobeyed the instructions given to him either to take the test or to leave the premises, and at the time was on a written warning for insubordination. The offence was sufficiently grave to render a continued employment relationship impossible. Dismissal was the appropriate sanction.
Extract from the judgment:
[At p 254F] The purpose of not allowing a person who is under the influence of alcohol or whose state of sobriety is unknown is to ensure the safety of the employees on the premises. It therefore follows that asking the person who has refused to take an alcohol test to leave the premises is not unreasonable.
[At p 255C] The evidence shows that the rule and the practice have been consistently applied by the company so as to ensure the safety of its employees or of any visitor to its premises.
[At p 255E] For the insubordination to be described as gross, it must be serious, persistent and deliberate… Applicant had been instructed more than three times to blow into the alcohol scanner and to leave the premises as he was not prepared to blow into the scanner but he refused to do as he was requested…Applicant persistently refused to obey the instructions and his refusal to obey was serious in that the employer lost two hours of work. His refusal was disruptive… I am satisfied that the offence of which applicant has been found guilty is of sufficient gravity to render the continued employment relationship between the parties intolerable.