Being Accused of Breaking Labour Law Because You Didn’t Set the Rules for Conduct
As an employer in South Africa, you have to comply with many laws and can easily land in a situation of being accused of breaking labour law regulations.
One situation that is particularly difficult to handle and in which you should take extreme care for not breaking labour law regulations is dismissing a person for misconduct, such as being intoxicated on the job or using alcohol excessively out of work hours, but to the degree that it affects the employee’s ability to perform satisfactory in the workplace. More often than not, such an employee may miss workdays, arrive late, leave early, slip out of the workplace for a quick drink or take several days sick leave at a time.
If the situation continues, the employee becomes guilty of misconduct. However, how you address the problem is what will determine if you are in the clear when being accused of breaking the law. First things first – your company needs an official policy in dealing with such misconduct, without which you will not have a lot of ground in taking the necessary disciplinary steps against the employee. The reason is simple – if there is no rule in place, the employee cannot be held accountable for breaking the rule since it doesn’t exist. Though one can argue that such a rule is implied even if it is not in writing, you have to ask to what extent it can be applied since there are no boundaries in place to determine when the employee breaks the rule to the level that it warrants disciplinary action.
Setting up a policy regarding the usage of alcohol should be a priority. Unfortunately, there is no generic policy available and you will need to set the rules for the particular job responsibilities, especially when it comes to employees working with hazardous materials or occupying positions where being alert is essential, such as driving or operating heavy duty equipment. This is important because the acceptable level of alcohol for an employee having a desk job will be significantly different from an employee who, for instance, operates a bungee jump operation.
Of course, the above may seem like you are discriminating against employees, but the important rule here is to ensure the safety of employees, colleagues, customers and the general public. Where a person in the capacity of pilot for instance, operates an airplane, even after four hours since consuming alcohol, makes a judgment error leading to a crash, the survivors may very well argue that the usage of alcohol or the lack thereof – if the pilot regularly drinks alcoholic beverages within 24 hours of the flight – may have been the reason for poor decision-making capabilities. Your firm will then be on the receiving end of lawsuits. It is therefore your responsibility to ensure the safety of all employees and people making use of your services and as such, you must set relevant policies according to the job responsibilities of the employees.
Contact the Allardyce & Partners attorneys at email@example.com or on 011 234 2125 for legal guidance and assistance regarding labour dispute resolution.
NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.