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“I came to work smelling like yesterday's alcohol so they tested me and the results came back positive as obviously I was drinking yesterday. So now my company wants to take me to a hearing and I didn't even get a first warning. Is this right what they are doing? Please help.” Scorpion Legal Protection answers this question from a follower on the Scorpion Facebook page.
When it comes to administering alcohol tests in the workplace, there is nothing in South African labour law about forcing employees to take an alcohol test or restrictions on the type of tests that can be used – it’s all about what is reasonable and fair. While an employer cannot force an employee to take an alcohol test, they can request the employee to subject themselves to the alcohol tests due to zero tolerance of alcohol in the workplace through their policies, procedures and the employment contract.
When you agree to start employment with the employer and sign your employment contract, you also agree to their policies and procedures, and this can include submitting to alcohol tests. This may even be specifically included in your employment contract as a clause. You can still refuse to take the tests, but if you do so it means you are in breach of the terms of your employment contract with your employer and also in breach of the company policies and procedures where you agreed to be subjected to alcohol tests. If you choose to refuse and commit the breach, the company is allowed to take disciplinary measures against you.
What is reasonable or not then will depend on the circumstances of each case.
No. Disciplinary hearings must follow a process and the employer cannot just take the employee to a disciplinary hearing immediately for an act of misconduct, as this will be considered an unfair disciplinary hearing on grounds of a faulty (unfair) procedure followed. If the employee is then dismissed, the dismissal can be challenged at the CCMA because it does not fulfil the requirements for a fair dismissal according to section 188 of the Labour Relations Act.
In order for a disciplinary action to be fair, the following requirements must be met:
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing. This is not financial advice.
Date added: 1 June 2021
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