Alcohol and drug use in the workplace – a case for kindness or castigation?

Different legal procedures apply when handling workplace problems arising from misconduct on the one hand, or from an employee’s health problems on the other. Misconduct is treated more harshly, whereas ill health is regarded as a misfortune that befalls the employee through no fault of their own.

Problems can arise when an employee drinks alcohol or consumes drugs on the job, or arrives at work in a state of intoxication, or misses work altogether on account of having been on a drinking or drug binge. Most employers would regard any of these scenarios as being cases of misconduct, and they might be. However our law recognises that alcohol or drug dependency is an illness, and requires employers to treat true dependency as an illness and not misconduct. The involvement of alcohol or drugs in a workplace problem doesn’t automatically make the matter one of misconduct or of ill health. Each case must be handled on its own merits.

Where an employee suffers from a dependency problem, the ill health procedure is appropriate. The employer is expected to go to greater lengths to accommodate and assist the employee, given that the matter doesn’t concern fault, as such. Counselling is necessary and the employee may require assistance to access rehabilitation. However, if the employee simply abused alcohol or drugs – and thereby contravened a workplace rule, with fault and without dependency playing a role – the misconduct procedure would be appropriate, and a disciplinary hearing should be held.

Where an employee claims to suffer from a dependency problem, the employer should assess this, to determine whether to treat the matter as one of ill health or misconduct. However where an employee expressly denies having a dependency problem, recent judgments suggest that the employer need not take the enquiry further, but may safely default to the misconduct procedure.

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2 thoughts on “Alcohol and drug use in the workplace – a case for kindness or castigation?

  1. Can one include a termination clause in an employment contract where the prospective employee has admitted to being an alcoholic, 2.5 years clean? In other words, can the employer protect themselves through the contract should the employer start drinking again?

    1. Hi Jeanette

      My apologies for the delay in responding.

      If I understand you correctly, you are suggesting a clause permitting an employer to summarily terminate the employee’s employment should he or she suffer a relapse into alcoholism, without the need to follow the procedures described in this blog.

      True alcoholism, as opposed to mere abuse of alcohol, is regarded by our law as a disease rather than misconduct, thus one cannot institute a “one strike” policy against an alcoholic employee. It would be akin to specifying that an employee whose cancer is in remission would be summarily dismissed without any fair process should their cancer return.

      This would amount to contracting out of the employee’s right not to be unfairly dismissed. It cannot be lawful for parties to an employment relationship to agree that the employer does not need to treat the employee fairly in accordance with the law. I expect that, should an unfair dismissal dispute come before the CCMA in such a case, the CCMA would not allow the employer to rely upon the existence of such a clause in the contract, and would ignore the existence of the clause in adjudicating the dispute.

      Thus such a clause would not be advisable.

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