TESTING EMPLOYEES FOR DRUG ABUSE IN THE (SOUTH AFRICAN) WORKPLACE

It is a fact that the employer would want to dismiss an employee who tests positive for- or who is under the influence of prohibited and intoxicated substances, but could only do so successfully if the employer can proof that[1]:

• the employee is intoxicated to the extent that the employee is not in control of his own faculties;
•  and therefore not capable of performing his duties; and
•  only after a final written warning is already in place; and
•  only if attempts to assist the employee with rehabilitation / treatment had been unsuccessful or the employee denies being an alcoholic/addict.

It is furthermore possible that the abuse of alcohol and tobacco (which usage is not prohibited in terms of legislation) being far more addictive and causing far more physical harm[2] than some of the drugs such as LSD, Ecstasy etc. and which the use of is either restricted- or prohibited in terms of legislation.

From the outset it must be noted that I smoke (cigarettes) and most definitely enjoy my brandy when I get home, especially after a day full of issues. I am furthermore no expert in chemistry, but the subject triggered my interest afresh after I instituted disciplinary action against a manager for testing positive for Amphetamine (Cat, speed etc.). My research in this regard lead me to discover some interesting facts and ultimately lead me to conclude that:

Our Labour Courts may have adopted an incorrect approach- and places a totally impractical degree of onus of proof on the employer when dealing with dismissals of employees testing positive for the use of intoxicating substances.

BACKGROUND

Drug abuse is an ever increasing problem in society[3] and must therefore also be prevalent in the workplace without the employer necessarily noticing it initially – in my opinion, mostly due to ignorance and/or a lack of employee interaction. The MRD estimates that the crime committed in order to support drug users’ habits is in excess of R10 billion per year in South Africa[4]. In the USA this is estimated at $600 billion annually according to the NIH[5]. This seems to be a factor which our Courts had ignored to date and which I will return to later herein. Drug abuse will not only be found with the lower paid employees and in some instances may even be more common with managerial- or senior employees. Ms. Sandra Pretorius, director at SANCA Horizon Clinic[6] recently stated that judging on the number of admissions, drug abuse is a growing market. She continued by stating that the profile of abusers had changed from being mostly teenagers to now include older people too[7]. It is also a fact that drugs are more and more featured in cases where children murder their parents – a phenomenon which in itself is clearly on the increase despite the lack of a national study in this regard[8].

Some drugs may be used freely in some countries, whilst the use of it in other countries might be legal and freely available such as Marijuana and Khat[9]. The employee using Marijuana or Khat in these countries can therefore not be disciplined. However, in countries where these drugs had been deemed illegal through legislation, the employee can be disciplined. Note that I said disciplined, as this may not necessarily include dismissal, as I will refer to later herein.

Statistics for drug abuse in South Africa as at 2016[10]:

• - 3.65% of population[11] for cannabis;
• - 1.02% of population for cocaine;
• - 1.02% of population for amphetamines;
• - 0.91% of population for opioids and opiates;

During 2013, amongst all people treated for drug abuse, 22.9% were treated for abuse of methamphetamines. This is about the same percentage of the population who had been treated for alcohol abuse during 2011[12].

There is therefore a definite increase in drug abuse and this should manifest itself also in the workplace. Employers generally have a ‘zero tolerance’ policy on testing positive for intoxicating substances and / or drug abuse. As I will elaborate later herein, such an approach will be outdated and inappropriate in most instances.

MISCONDUCT OR POOR PERFORMANCE?

I must hasten to add that dismissals related to intoxication in the workplace can either be due to misconduct or performance related. The employer may adapt a ‘zero tolerance’ policy in the workplace successfully related to misconduct involving intoxicating- or illegal substances in the workplace such as:

• Employee being in possession of illegal substances;
• Employee trading in illegal substances at the workplace;

In the past an employer could successfully have dismissed an employee (on a first transgression) merely for testing positive for intoxicating- or illegal substances. This however, no longer applies. Testing positive for an intoxicating- or illegal substance is not in itself a workplace transgression which would warrant dismissal on a first- (or even sometimes subsequent) transgressions, (with the exception of specific factors) as I will illustrate.

Our Labour Courts have adopted the approach that by testing positive for intoxicated- or illegal substances should be treated as a performance related matter.

TESTING POSITIVE FOR ALCOHOL IN THE WORKPLACE

There is a substantial number of case law available in South Africa related to testing positive for alcohol in the workplace. In Astore Africa (Pty) Ltd v CCMA and Others (JR 1895/05) (2007) ZALC 54[13] Molahlehi AJ (as he then was), upheld a decision by the CCMA Commissioner that the dismissal of the employee will be unfair. The Commissioner found that:

‘7.4 The respondent’s witnesses testified that the applicant was drunk on the date of the incident, because his speech was slightly slurred, he smelled alcohol on his breath and his eyes with (sic) very red. The evidence is probable cause the evidence was consistence (sic) and the applicant admitted that he smelled alcohol. It further indicates that the applicant consumed alcohol. The difficulty with this evidence is that it does not prove that charge brought against the applicant, because intoxication is a matter of degree.’[14] 

However, had the employee not being charged for being intoxicated but rather just for having consumed alcohol, in my opinion the outcome would have been no different given existing case law in this regard mentioned hereunder. The degree of intoxication does not refer to any legal limit set i.e. for road users, but would only matter to the extent that the employee cannot perform his duties.

Our Courts have therefore adopted the approach that by being under the influence of an intoxicated- or illegal substance alone could not be sufficient reason to terminate an employee’s services, but rather the degree of intoxication which has to be to the extent that the employee could not perform his duties. However, the Labour Court then took it a step further.

In Transnet Freight Rail and another v SATAWU and others (unreported case number C644/2009) Cape Town Labour Court, Steenkamp J found that employee must be intoxicated ‘to the extent that he cannot perform his duties’ rather than only testing positive- or exceeding an acceptable standard for alcohol intoxication. In a different matter[15], Steenkamp J however agreed with the dismissal of an employee found to be intoxicated and whilst already on a final written warning, and the employee not being considered an ‘alcoholic’ as the employee denied dependency. This judgment now seems to indicate that no longer must the employee not only be intoxicated to the extent that he cannot perform his duties, but must also be on a final warning and offered assistance with rehabilitation / treatment where the employee admits having a problem.

TESTING POSITIVE FOR OTHER INTOXICATED SUBSTANCES (EXCLUDING ALCOHOL) IN THE WORKPLACE

This is where the subject matter gets interesting.

There is only two other cases I could find that had been to Labour Court which relates to drugs other than alcohol. In Numsa obo William Julian Harris v Bargaining Council and others (unreported Case number JR637/2012) (Labour Court Johannesburg 29 July 2015) Coetzee AJ stated that:

‘No reasonable commissioner would have come to the conclusion that the employee was under the influence, merely for having tested positive for cannabis. That is so unreasonable that it stands to be reviewed and set aside[16].’

At paragraphs 15 to 16 of the written judgment, Coetzee AJ stated that:

‘All that the employer established was that he tested positive for use of cannabis and on the employer’s evidence he could have tested positive for another six weeks without having been under the influence of cannabis. Dismissing the employee after a disciplinary inquiry on a lack of evidence that he was under the influence[17] is unfair. This was a substantive problem for the employer.’

In this case, the Court has seemingly also considered the provisions of the Occupational Health and Safety Act[18], as it stated at paragraph 19 of the judgement:

‘This Court has the greatest sympathy for an employer who wishes to protect its employees and its equipment to comply with OHSA and have a save work environment, but then the employer must go about it the correct way[19].’ I will return to this case later herein and specifically as to the ‘correct way’ the Court referred too.

The other matter related to substance abuse other than alcohol relates to an employee who refused to attend a drug test[20] despite it being a condition of employment. In this case, the employee was awarded a substantial financial amount despite her agreeing to these tests prior to her employment. The EEA[21] however sets strict specific conditions for testing. I will not deal in-depth with this case as it is irrelevant for the purpose of this article.

What is the right way for the employer to prove that an employee is not capable of performing his/her duties as contemplated in the NUMSA case above?

HOW TO DISMISS AN EMPLOYEE FOR TESTING POSITIVE FOR SUBSTANCE ABUSE

Given existing case law (as mentioned above), it would be necessary that the employer, prior to dismissing an employee, must prove that the employee:

• Tested positive for use of an intoxicated substance; and
•  The test is confirmed as there are external factors which could influence the test results; and
•  Is intoxicated to the extent that he is under the influence of the intoxicated substance for which he tested positive; and
•  Is intoxicated to the extent that he is not in control of his faculties; and therefore
•  Is intoxicated to the extent that he cannot perform his duties; and
•  Has already been issued with a final written warning; and
•  Has already been assisted through a rehabilitation programme alternatively the employee denies having a dependency problem.

This approach by our Labour Court creates (in my opinion) additional onus of proof on the employer and is impractical and extremely risky. This approach could furthermore indeed be contrary to the provisions of Section 8 of the Occupational Health and Safety Act 85 of 1993 (as amended) despite the findings in the Astore case mentioned above. For example:

• Must a truck driver first be involved in a vehicle accident or commit an offence in terms of the National Road Traffic Act 93 of 1996 (as amended) to enable the employer to proof that the employee could not perform his duties?
•  Must a blockman first cut himself on a band saw before the employer can proof that the employee was not in full control of his faculties?
•  Must a cook now first cause a gas explosion before the employer can prove that the employee was intoxicated to the extent that she could not perform her duties?
•  Must the cashier now first misappropriate R3000 (to sustain her drug habit) before the employer can proof that the employee was not fit to perform her duties?

In Pikitup (Soc) Ltd v SAMWU and Others(unreported case no: JA82/13) Labour Appeal Court 5 December 2013, the testing of intoxicated- or illegal substances was ruled to be a matter of mutual interest over which employees had the right to strike. In this case, the Labour Appeal Court also extensively considered the provisions of the Occupational Health and Safety Act as well.

Alcohol can effect parts of the brain which leads to difficulty walking, slurred speech, memory lapses, aggression and impulsive behaviour[22]. Amphetamines, in moderate doses, will result in increased alertness, heart rate, locomotion, talkativeness, restlessness, euphoria and a decrease in appetite. In high doses, it could result in irritability, anxiety, hostility and aggression[23]. From where I’m sitting, amphetamines seems to be the lesser of the two evils, yet, alcohol is not a banned substance whereas amphetamines are. A recent study[24] by the University of Pretoria at p12, that alcohol is furthermore far more addictive- and causes far more bodily harm than i.e. amphetamines or LSD etc. Google was not able to provide me with any reason as to why alcohol is not a banned substance but amphetamines and LSD are and maybe someone with the appropriate knowledge could shed some more light on this. My personal opinion (at this stage) is that alcohol and nicotine is not a banned substance merely due to the financial benefits it holds for any country’s economy and to a lesser extent the fact that long term use could alter the manner in which the brain function – but this is also prevalent with alcohol abuse.

CURRENT APPROACH OF THE COURT OPEN TO CHALLENGE

It has always been my philosophy that any kind of substance abuse should be considered as an illness and must be treated as such – regardless if the employee admits to having a problem or not (as most alcoholics or drug addicts will not admit to having a problem in the first place) and regardless if the substance is legal or not. The Court would suggest that by discriminating between an employee who admits having a problem and one who denies having a problem would be fair. This fact leaves the Labour Court’s current approach on this issue wide open for challenge.

Amphetamines causes increased alertness. Where the employee is therefore an amphetamine user, this will not be easily detected and the employee may even perform better. How is the employer ever going to prove that the employee is under the influence to the extent that the employee cannot perform his/her duties? This would be nearly impossible as the drug has the opposite effect. The Labour Court, through its current approach, therefore seems to expect that the employer must wait for an incident to occur which will enable the employer to prove that the employee is unable to perform his/her duties. This could be dangerous with possible devastating effects. The employee (on amphetamines) may perform his/her duties even better, but this employee may be misappropriating the employer’s property to sustain the addiction. I do believe that prevention is better than cure and to wait for an incident to occur is not only irresponsible, but place the employer in a situation where the employer may be sued if it becomes known that an employee (who had tested positive for the use of intoxicated substances) was allowed to continue working (as there is no prove that the employee could not do so) and as a result the employee caused an incident / damage. (In such an instance the charge related to the incident will in all probability then revert to being (mis)conduct related instead of capacity. It is totally unreasonable of the Labour Court therefore to expect the employer to proof that the employee is intoxicated to the extent that the employee cannot perform his duties, as the employer would inevitably have to wait for an incident to occur, unless the employee come to work unable to walk, which will not be the case with amphetamine addiction. This leaves the Labour Court’s approach open to challenge.  

Rehabilitation- or treatment however is furthermore not always the appropriate remedy as reputable rehabilitation centres will not waste their time on individuals who are in denial of having a problem. Treatment of such an individual will normally in any event be unsuccessful as they will either drop out of any rehabilitation programme or return to their habits once the programme had been completed. To my shock, I have read an advert of a rehabilitation centre (which I will refrain from naming) which will teach the person to use legalised substances moderately and within acceptable standards. To assist an alcoholic or drug addict with rehabilitation who admits having a problem, but do not want to be rehabilitated, furthermore defeats the objective of progressive disciplinary sanctions and is a wasteful expenditure. Our Courts have also not considered this fact.

The degree of assistance expected from the employer has furthermore not been established. I assume one must merely consider as to what would be reasonable? This however could also pose a problem as my sense of reasonableness may differ with that of a Commissioner during a dispute resolution process. In my view, by allowing the employee time off to attend rehabilitation programmes / treatment should be sufficient. Surely our Court cannot expect that the employer must pay for the employee’s treatment / rehabilitation? Should this be the case, then the employer could also be expected to assist staff with treatment of other illnesses. However, what to do if the employee states that the employee cannot afford treatment / rehabilitation programme? In such an instance the Court’s approach would be totally impractical in any event and open to challenge.

However, for the Labour Courts to expect an employer (who is not a psychiatrist, medical practitioner, specialist in the field of chemistry etc.) who must deal with labour disputes with the least of legal formalities (as the employer is neither a lawyer), to now have to proof more than just the employee being tested positive for the use of illegal- or intoxicated substances, is absurd.

The employee could already and furthermore also challenge the validity of the test itself and also the manner in which the test was done. The credentials of the person performing the test could also be challenged. This however was not yet challenged through our Labour Courts, but was successfully done in criminal matters.

DISCIPLINARY ACTION

To dismiss an employee for ‘being intoxicated’ or for ‘being under the influence’ has proven to be a lengthy and risky process. Employers (without medical knowledge) are merely assuming that an employee testing positive for an intoxicated substance to be under the influence of such a substance. It cannot be expected from the employer to comply in disciplinary charges with strict legal precision and to use strict correct terms. The employer’s code of conduct may prescribe reporting on duty smelling of alcohol as an offence. However, should the employer now under these circumstances take disciplinary action against the employee for being under the influence of alcohol, changes the essence- and nature of the transgression, albeit unintentionally. 

I will always give the employee the opportunity to opt for treatment, failing which will result in termination of employment. When an employee tests positive for intoxication of any drugs, the employee is suspended pending the outcome of a disciplinary hearing as provided for in terms of the Labour Relations Act. By doing this, at least the employee is not permitted to work on the day of testing positive (regardless if the employee seems in control of his faculties or not, or if the employee is intoxicated to the extent that he/she cannot perform his/her duties). This is a precautionary measure that alleviates the risk of the employee doing anything which could harm himself, other employees and the employer, and puts me in compliance with the provisions of the OHSA and the LRA. I must add that it is an offence in our group to report for duty when testing positive for the presence of alcohol or any prohibited substance and a Final Warning is issued for a first offence subsequent to a disciplinary hearing.

Our Labour Courts had condoned the practice of employees reporting on duty drunk and intoxicated in excess of acceptable standards, and had unduly burdened the employer with a lengthy impractical process to address the problem speedily and effectively. In essence, the employee’s problem had now been made the employer’s problem. 

With drug abuse on a steady increase, we all have a moral obligation to do our bit which will hopefully result in a reversal of the abuse. I suggest where possible, HR managers have info sessions to explain to staff the dangers- and consequences of drug abuse. I furthermore suggest our dispute resolution institutions reconsider the additional impractical burden of proof placed on employers in dealing with these matters.

Update:

'More U.S. workers (one in every 25) are testing positive for illicit drugs than at any time in the last 12 years, according to data coming out today from Quest Diagnostics Inc., one of the largest workplace-testing labs in the nation'.

Lauren Weber, The Wall Street Journal, May 16, 2017 6:03 a.m. ET

    

 

[1] NUMSA obo Mbali and Schrader Automotive SA (Pty) Ltd (2005) MEIBC and confirmed by the subsequent   unreported Labour Court judgment by Molahlehi J under case number P488/05, Transnet Freight Rail and another v SATAWU and others (unreported case number C644/2009) Cape Town, Builders Trade Depot v CCMA & others (2012) 4 BLLR 343 (LC)

[2] Perspectives on workplace drug testing in South Africa: Dr Tim Laurens (PhD, FRCS, MFSS) Forensic Division, Dep of Chemistry, University of Pretoria

[3] www.health24.com/Medical/Addiction 20150625

[4] www.health24.com/Mental-Health/Drugs 20120721

[5] American National Institute on Drug Abuse

[6] www.horizonclinic.org

[7] The poor man’s coke, called ‘cat’, is gaining huge popularity in South Africa: Gavin Hayens 20 February 2015

[8] Editor’s comment: City Press Voices edition p2 19 June 2016

[9] Marijuana: News Day, 9 March 2013, Khat: www.loc.gov (Library of Congress)

[10] Latest Drug Statistics – South Africa 2016 by Tian Reagon dated 21 April 2016

[11] As at 2013

[12] Central drug Authority parliamentary briefing 6 September 2011

[13] Also reported at (2008) 1 BLLR 14 (LC)

[14] At par 17 of the judgment, my underlining

[15] Transnet Freight Rail v Transnet Bargaining Council & others (2011) 6 BLLR 594 (LC)

[16] At paragraph 25 of the judgement

[17] My underlining

[18] Occupational Health and Safety Act 85 of 1993 (as amended)

[19] My underlining

[20] EWN v Pharmaco Distribution (Pty) Case No JS654/10 Lagrange J

[21] Employment Equity Act 55 of 1998 (as amended)

[22] www.nihseniorhealth.gov/alcoholuse

[23] www.the-peak.ca/2014/11/this-is-your-brain-on-drugs/

[24] Perspective on workplace drug testing in South Africa by Dr Tim Laurens (PhD, FRSC, MFSS) Forensic Division, Dep of Chemistry, University of Pretoria