QUERY
There seems
to some uncertainty about the level of alcohol that is permitted in the
bloodstream when a employee reports for work and is on company premises have
not been able to find any guidance ito the OHS ACT wrt this matter no maximum
levels are prescribed which could be used. The guys on the shop floor are
under the impression that the same levels as those contained in the act
governing motorists are applicable and we have never ending arguments about
this.
Our policy is
that in the event of the breathalyser showing any reading you are then deemed
to be under the influence of alcohol and that you are then sent home. Upon the
employees return the next day he is then issued with a final warning and
offered rehabilitation in terms of our policy. A further transgression within
a 12 month period then leads to dismissal.
What we have
found is that this practice at the company is busy eroding skills that are not
in abundant supply more especially so amongst artisans. This is problematic to
us as these skills are not only scarce but take a long time to acquire.
Please can you
assist us by giving us some guidance on this matter e.g. What level of
intoxication is acceptable if any? Is our policy wrt discipline on this
subject to strict? Are there any adverse consequences if we relaxed the
discipline to say, a written warning in the first instance or will that be
seen that we condone and finds intoxication acceptable? What will the
consequence be to the company if a person who is intoxicated has a serious
accident?
Any other
advise on this matter will be appreciated.
ANSWER FROM RHL
The OHS Act, in particular General Safety Regulation 2A,
strives to prevent any person accessing alcohol at the workplace whether or
not that person's faculties are impaired which may create a danger to safety.
The possession, offering of alcohol and drugs is prohibited as
well as the mere 'sipping' (partaking) of alcohol.
The employer, on the other hand, only has an explicit duty of
preventing persons who appear to be under the influence of alcohol from
entering or remaining at the workplace. One could argue that if someone
appears normal (not intoxicated) then the employer is not dutybound to take
action. If a random test shows alcohol in the bloodstream and the person
appears normal, I am of the opinion that the OHS Act not require you to remove
the person from the workplace. (For example where there are residual traces of
alcohol from the night before).
There is therefore no 'legal limit' prescribed in the OHS Act.
There guidelines of the National Road Traffic Act also do not apply. The
intention is to prevent workers from endangering themselves and others while
intoxicated. I am weary to get into the LRA field as it is not my field of
expertise but I cannot see why you cannot change (soften) your own
disciplinary code if it does not clash with any provision of the LR Act. You
say that if any traces of alcohol is found this triggers your
disciplinary code? I think that you could perhaps look at higher readings. The
National Road Traffic Act stipulates that a reading under 0,05 is acceptable
for persons to drive motorcars safely on public roads.
QUERY
Whilst reading your website the following
question regarding the use of alcohol in the workplace came up:
Does GS Reg 2A(2) below refer only to an individual person in possession of
alcohol at work?
- I presume it excludes the situation where alcohol is used in the workplace
during a work function (work party), and also where there is a pub in the work
area where people can purchase alcohol (cash if licensed and a ticket system if
not).
What is your opinion?
ANSWER FROM RHL
Yes indeed an individual is prohibited ('no person') from
possessing, using and offering alcohol to anyone at the workplace. They need
not even be intoxicated to fall foul of this regulation although intoxication
is also a crime.
The question of bars has often been raised and most employers
that do have bars consider the bar environment not to be part of the workplace
as defined. They prohibit persons from working after consuming alcohol and
many have posters on their walls discouraging driving after alcohol
consumption although there is no legal duty on employers to prevent employees
from driving on public roads after consuming alcohol. At best there is a moral
obligation.
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