Drugs, Lies and Red Tape

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Drugs, Lies and Red Tape
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Substance abuse statistics

• South Africans drink over 5 billion litres of
  alcohol every year that is 120 litres per
  person. (1)
• At least 70 of substance abusers are employed.
  (2)
• Half of people who die of homicide and traffic
  collisions causes have alcohol blood levels above
  the legal limit.(3)
• Just under half of all male prisoners were
  reported taking alcohol and/or drugs immediately
  before or at the time of committing the offence
  for which they were imprisoned.(4)
• Studies done by the Medical Research Council
  (MRC) found that in the Cape Peninsular alone, of
  grade 8 and grade 11 students from non-private
  schools 53.2 had drank alcohol. (5)

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• In a SENDU study of young people below the age of
  20 receiving treatment in a specialist centres
  nation-wide, over 50 named dagga as their
  primary drug. (7)
• Localised research found that 36 of male and
  19 of female grade 11 (Standard 9) students in
  state-funded schools in Cape Town reported to
  have partaken in binge drinking. (8)
• It is reported that as many as one in three
  people between the ages of 14 and 25 in Gauteng
  is addicted to drugs. (9)
• The MRC estimates that Grade 11 pupils in Cape
  Town are estimated to spend R5,7-million on
  tobacco, R14-million
• on liquor, R1,2-million on drugs and
  R2,1-million on dagga. (10)

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• 40 of teen suicides and accidental deaths are
  thought to be linked to substance abuse. (11)
• In KZN 31.7 of males and 38.7 of females are
  reported to engage in risky drinking over
  weekends. (12)
• Prevalence rates for Foetal Alcohol Syndrome in
  the Western Cape in grade one children is 88 per
  1000. (13)
• Average per capita consumption of alcohol is
  approximately 20 litres a year, making it one of
  the highest consumption rates in the world. (14)
• People from all race groups reported alcohol as
  their primary drug.
• Since 1997, the consumption of heroin increased
  by 400 percent, with the average age of heroin
  users dropping. Drug counselling centres report
  treating heroin addicts as young as 12 years old.
  (16)

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• Business impact of substance abuse
• Substance abuse in the workplace is on the
  increase and three our of four alcohol abusers
  are employed. (17) 70 of drug abusers are in the
  active workforce. (18)
• No occupation or demographic group is immune from
  disease of alcohol and drug abuse, with substance
  abuse spread across service employees,
  professionals, labourers and executives, male and
  female, of all races and ages.
• The harmful effects of alcohol use in the
  workplace extend beyond the negative health
  consequences. They also have repercussions for
  employers in terms of
• A loss of productivity
• Higher absenteeism rates and excessive use of
  sick leave

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• Personnel turnover and additional training costs
• Workplace accidents
• Disciplinary action
• Possible litigation costs for the company
• Loss of customers
• Possible damage to property
• Aggression, poor interpersonal relationships and
  a decline in employee morale
• Cost of rehabilitating substance abusers

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• The costs of substance abuse
• It is estimated that in SA the abuse of alcohol
  and other drugs costs the economy at least R9
  billion a year. (19)
• In one study alcohols were found to have lost 86
  working days a year due to absence. (20)
• Substance abusers are
• Over 50 of accidents in the workplace are
  drug-related, and theft at work and other
  criminal activities are trebled. (21)
• Overall, an undetected drug abuser costs his
  employer a further 25 of his wages. (22)
• At a Cosatu-sponsored safety and health
  conference, it was revealed for every day in the
  SA industry on average 5 people die from injuries
  received, 430 people are injured and 52 people
  are permanently disabled.
• It is reported that 50 of accidents in the
  workplace are drug related. (23)

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Factors to consider before tackling alcohol and
drugs in the workplace

• Subjectivity
• Chain of Custody
• Maintaining an accurate record
• Wording of Policies
• Presentation of evidence in a legal fora

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• Area of concern Health
• Addiction to drugs and alcohol as a form of
  incapacity.
• Black Mountain v CCMA and Others (Labour Court
  Judgment)
• Facts
• A driver of a 50 ton vehicle on a mine caused an
  accident when his vehicle hooked on to electrical
  cables exposing other employees to risk. His
  alcohol level was well in excess of the legal
  limit and he displayed physical symptoms of being
  under the influence of alcohol. He was
  disciplined and dismissed.

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• Held The Court found that whilst the employer
  would, under normal circumstances be entitled to
  dismiss, in terms of their own code and policy,
  the employer was obliged to suspend disciplinary
  action pending the employee undergoing treatment
  and rehabilitation.
• Principle
• Beware the contents of codes and policies.
  
• Employees should be encouraged to disclose
  any
• addiction they may have.
• Note Distinction between addiction to alcohol
  and being under the influence at work

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• Chetty and Kaymac Rotomoulders (Pty) Ltd
  (Arbitration) 2004
• Facts
• Team leader responsible for a safety critical
  department and administering the company EAP
  disclosed that he had a drug dependence problem
  when it was announced that random drug tests
  would be conducted. He requested assistance, but
  received none. When tested, found positive and
  dismissed.
• Held
• The manner in which the tests were conducted was
  clearly designed to catch specific employees. The
  employees work had not suffered from his
  condition. The fact that he received no
  assistance rendered the dismissal substantively
  unfair. But because of employees lack of
  concern over possible harm in under the influence
  of drugs at work, no reinstatement, only 3 months
  compensation.

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• Principle
• If assistance is requested, it should be given
  before disciplinary action is resorted to.
• Dependence may not immediately manifest in
  performance issues.

15

• Yende and Cobra Watertech (Arbitration) 2004
• Facts
• Employee tested positive for cannabis in two
  tests a month apart. Dismissed for being under
  influence of drugs at work.
• Held
• Tests only proved that the dependency had not
  diminished, not that he was under the influence
  at work. Reinstatement, but only 3 months
  compensation.
• Principle
• Positive test for cannabis does not amount to
  being under the influence
• Remember distinction between misconduct and
  incapacity

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Area of concern Safety OHS Regulations 2A (1)
Subject to the provisions of sub regulation (3),
an employer or a user, as the case may be, shall
not permit any person who is or who appears to be
under the influence of intoxicating liquor or
drugs, to enter or remain at a workplace. 2A(2)
Subject to the provisions of sub regulation (3),
no person at a workplace shall be under the
influence of or have in his or her possession or
partake of or offer any other person intoxicating
liquor or drugs. D(6) No person under the
influence of alcohol or drugs shall enter any
premises where machinery is used.
17

• SALSTAFF/AIWU on behalf of GOVENDER v SA
  Airways (Arbitration)
• Facts
• Cabin attendant failed to disclose addiction to
  crack cocaine and was dismissed on first offence
  without being offered the opportunity of
  rehabilitation.
• Held
• Given the potential consequences of being under
  the influence in the position he occupied,
  dismissal was appropriate.
• Principle
• The risk must be assessed with reference
• to the position occupied.

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• Area of concern Discipline
• Problems of Proof
• Tanker Services (Pty) Ltd v Magudulela
  (Labour Appeal Court) 1997
• Facts Found guilty of being under the influence
  of alcohol at work whilst driving a heavy
  articulated truck. He refused to undergo a
  breathalyser test and exhibited other symptoms of
  being under the influence of alcohol.

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Held The difficulty with proving the charge
brought against the respondent is that
intoxication is a matter of degree. The
respondent would only be under the influence of
alcohol if he was no longer able to perform the
tasks entrusted to him, and particularly the
driving of a heavy vehicle, with the skill
expected of a sober person. Whether an
employee is, by reason of the consumption of
intoxicating liquor, unable to perform a task
entrusted to him by an employer must depend on
the nature of the task. A farm laborer may still
be able to work in the fields although he is too
drunk to operate a tractor. Consumption of
alcohol would make an airline pilot unfit for his
job long before it made him unfit to ride a
bicycle.
21
The question which I should ask myself is,
therefore, whether the respondents faculties
were shown in all probability to have been
impaired to the extent that he could no longer
properly perform the skilled, technically complex
and highly responsible task of driving an
extraordinarily heavy vehicle carrying a
hazardous substance. Upheld Dismissal
22
United National Breweries (SA) v CCMA (LC
Judgment 2006) Facts Employee, a forklift driver
tested positive for alcohol on a breathalyser
test (0.5/0.15?). Dismissed for being under the
influence of alcohol. Commissioner found
insufficient proof of being under the influence.
Judge held There is no evidence which suggests
that the alcohol in his body impaired the manner
of execution of his duties Principle whilst
judgment is clearly wrong it underscores the
importance of careful preservation and
presentation of all evidence.
23
Arangie Abedare Cables (Arbitration Award)
2007 Facts Employer conducted random alcohol
tests, employee refused to take test or leave
employers premises after being instructed to do
so 3 times dismissed for insubordination. The
company manufactured cables using heavy
machinery. The employee was an electrician . Not
obligated to undergo test, but if not tested had
to leave the site. Upheld Dismissal
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NUMSA obo Motsele v Haggie Wire Strand
(Arbitration Award) 2006 Facts Employee
underwent breathalyser tests 0,115 and 0,116
blood alcohol level. Admitted to drinking
previous evening, but insisted not drunk at work
or under the influence. Upheld Dismissal
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• Exactics-Pet (Pty) Ltd v Patelia NO Others
  (Labour Court)
• Facts
• Dismissed for being under the influence of
  alcohol at work. The arbitrator had held that the
  breathalyser test was unreliable because it was
  not calibrated and that the employee should have
  been taken to the police for a blood alcohol test
  to be conducted.
• Held
• The test applied by the arbitrator was too
  strict. Breathalyser tests are sufficiently
  reliable to indicate whether blood alcohol level
  exceeds the legal limit. In any event, the
  physical evidence (the observation of his
  behaviour) was sufficient to establish being
  under the influence.

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• NACUSA obo Mabona LJ and Zodiac Pool Care
  South Africa (Arbitration)
• Facts
• The employee was a forklift driver who was
  dismissed for being under the influence of
  cannabis at work. No medical test was
  undertaken, but circumstantial evidence
  established that he had smoked on duty. The
  employee denied smoking cannabis on the day, but
  admitted that he did partake of it from time to
  time.
• Held Dismissal was fair.
• Principle
• Beware the charge.
• Take careful notes of all relevant conduct.

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Mayer and Mind Pearl AG (Arbitration Award)
2005 Facts Team leader in a travel business
responsible for 15 agents, found snorting a
white powder in his cubicle. The employee denied
the incident and offered to take a blood test (5
days later), but the employer did not send him to
do so. Arbitrator regarded probabilities of
versions given by the witnesses and disregarded
the expert testimony. Upheld Dismissal
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• Maluleke / Killarney Engineering (Pty) Ltd
  (Arbitration)
• Facts
• Employee accused his managers of stealing his
  money. The employee presented a rather unlikely
  story of such theft. The employer regarded the
  employees conduct as being related to his abuse
  of cannabis and dismissed him on a number of
  charges, primarily relating to intimidation,
  false accusations and disruption of the work
  place. The employee admitted to smoking cannabis
  in the toilets (but never on the shop floor).
• Held
• The dismissal was upheld.

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• Conclusion
• 1 Beware codes and policies.
• 2 Comply with codes and policies.
• 3 Use the best tests reasonably practicable for
  your circumstances.
• Take careful note of all surrounding
  circumstances.
• Partner with a reputable service provider in EAP
  (given!)
• 6 If in doubt, call your friendly local
  attorney.
• 7 If in no doubt, refer to point 6 above.

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SUBSTANCE ABUSE STATISTCS REFERENCES

• 1. http//www.health24.com/Man/Work/748-764-3017,
  14264.asp
• 2. http//health.za.msn.com/article.asp?contentID
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• 3. http//www.sahealthinfo.org/admodule/alcohol.h
  tm
• 4. http//www.alcohol.co.za/statistics.htmCrime
  
• 5. http//www.sahealthinfo.org/admodule/review.pd
  f
• 7. http//www.sahealthinfo.org/admodule/sacenduno
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• 10. http//www.dispatch.co.za/1999/09/18/southafr
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• 11. http//www.e-doc.co.za/modules.php?nameNews
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• 12. http//www.hst.org.za/uploads/files/chapter23
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• 14. http//www.dsd.gov.za/manuals/chapter1.pdf
• 15. http//www.dsd.gov.za/manuals/chapter1.pdf
• 16. http//www.health24.com/Man/Social_addictions
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• 17. http//www.health24.com/Man/Work/748-764-3017
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• 18. http//health.za.msn.com/article.asp?contentI
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• SUBSTANCE ABUSE STATISTCS REFERENCES
• 19. http//www.scienceinafrica.co.za/2004/january
  /injuryfund.htm
• 20. http//etd.rau.ac.za/theses/available/etd-022
  42006-082358/restricted/UtilisingEAP.pdf
• 21. http//www.health24.com/mind/Sexual_dysfunct
  ion/1284-1300,39391.asp
• 22. http//www.health24.com/mind/Sexual_dysfuncti
  on/1284-1300,39391.asp