Smuts claims that he was dismissed for being under the influence of alcohol while he was on duty. He says this is unfair because he denies being under the influence of alcohol while he was on duty. He says he has no record of misconduct and especially not drinking. He also says he was not given a hearing before being dismissed. He wants you to help him get his job back. When you telephone the manager Peter, he says that he has witnesses who saw Smuts under the influence of alcohol on duty. When you ask him why he did not give Smuts a disciplinary hearing, Peter says that there was no way he could have given Smuts a hearing – he was too under the influence at the time. Smuts admits that he had been drinking the night before, but he had not drunk anything on the day that he was dismissed.

WHAT DOES THE LAW SAY?

• Being under the influence of alcohol while on duty is an act of misconduct so proper disciplinary procedures must be used to work out whether the employee is guilty of being under the influence while on duty and to discipline the employee.
• To determine whether the employee was under the influence while on duty does not depend on the employer giving the employee a breathalyser test. This only measures the content of the alcohol in the blood. The breathalyser test does not say whether the employee was under the influence of alcohol. You can only work this out by observing the employee’s behaviour, or through witnesses who observed the behaviour. The employee’s behaviour will tell the employer whether the employee was too under the influence to carry out their job. The employer will have to say how the employee’s behaviour showed he was too under the influence to carry on working. For example, did the employee smell of alcohol, could the employee walk straight, was the speech slurred, were the eyes bloodshot, how rational or irrational was the employee being, was the employee acting in a strange way, was the employee being aggressive, insolent or loud?
• Peter should not have dismissed Smuts without first applying corrective and progressive discipline to correct the problem. He should have first given him a warning (although being under the influence of alcohol while on duty might constitute a serious enough offence to justify misconduct depending on what the employee’s responsibilities were). If the problem repeats itself the issue becomes one of incapacity, and a different procedure must be applied where he should have instituted other corrective measures, such as counselling.
• Peter also did not follow a fair procedure to dismiss Smuts, including giving him fair notice of a disciplinary hearing, and holding the hearing where witnesses could be called etc. (See Dismissal for misconduct)

WHAT CAN YOU DO?

This appears to be a clear case of unfair dismissal based on unprocedural grounds. Write to the employer demanding that Smuts be reinstated. (See Model letter of demand to employer for reinstatement) If Peter does not respond to the letter and/or continues to refuse to give Smuts his job back, you can refer an unfair dismissal dispute to the relevant body within 30 days of Smuts being dismissed:

• The Bargaining Council if Smuts is covered by a bargaining council agreement
• If he is covered by a collective agreement, follow the dispute resolution procedure in the agreement Otherwise refer the matter to the CCMA (See Problem 4: Dismissed employee wants the job back – how to apply for reinstatement or compensation)