A total 3 495 cases of consumer complaints were opened at the Consumer Goods & Services Ombud (CGSO) between March 2015 – February 2016, with the top five complaints relating to cellphones (951), services (795), furniture (523) electrical appliances (343) and computer accessories (140).

It should be noted that the organisation also received a staggering 14 599 calls from disgruntled consumers during that same period. While not all consumer complaints do become a liability issue, it is important that all South African businesses understand the consumer protection framework and what types of complaints can progress into legal liability claims.

This is according to Simon Colman, executive head at SHA Specialist Underwriters, who says for many years in SA, consumers had no efficient way of pursuing recourse against businesses if they felt they had been treated unfairly.

“The court processes are complex, expensive and in the end do not really service the average ‘man in the street’ who is often without financial and legal resources. The implementation of the Consumer Protection Act (CPA) changed all this because this piece of legislation dictates how consumers must be treated with regards the supply of goods and services in SA.”

He says the Act serves a noble purpose, protecting consumers and also providing businesses with a blueprint to good customer service. “However, any piece of legislation is useless without good enforcement. The National Consumer Commission (NCC), the Tribunal and the various alternative dispute resolution forums are all set up to provide a levelled playing field between businesses and their customers.”

Colman explains that typically a consumer lodges a complaint initially with the retailer or supplier of product/service and the normal complaints handling process between the retailer and the consumers then takes its course.

“Most complaints are actually resolved at this level but those that are not are then referred either to the NCC or to a recognised industry body if one exists.”

“The NCC is a statutory body that is responsible for overall regulation of the consumer environment whilst the CGSO is a recognised alternative dispute resolution forum, empowered by the NCC to resolve disputes. Once the ombud has ruled on an issue at the CGSO, disgruntled consumers can still approach the NCC if they are unhappy with the outcome,” states Colman.

Not every industry subscribes to the CGSO as participation is voluntary and involves the payment of subscription fees, he says. “A business that is not a member will by default either fall under the NCC’s jurisdiction or under some other more specific industry body if one exists, for example the motor industry has its disputes heard by the Motor Industry Ombudsman.”

Looking at the disputes that went before the CGSO last year 43% were related to goods whilst 29% related to services and 21% to allegedly unfair agreements/contracts, he says. “Not all of these complaints would result in a liability claim under an insurance policy. A product liability insurance policy generally responds to third party claims after there has been some form of injury or damage caused by the product/service.

“Many of the complaints that are lodged at the various dispute forums relate to some kind of failure or defect in the product/service but do not necessarily cause any injury or damage. In those instances the consumer is often simply seeking a replacement or a refund and that would not generally be an insurable claim, especially not under a product liability insurance policy.”

He points to an example in the CGSO report where a lady alleged that a defect in sandals she bought caused her to fall and injure herself. “Due to the fact that there is an allegation of an injury being caused by a product that would be what we would call an indemnifiable (covered) event. If the supplier had a product liability policy in place and it was alleged that the sandals caused the injury, the defense costs and the damages may have been covered by insurance. Contrarily, if the consumer simply claimed for a new pair of sandals because the others were of poor quality and there was no injury or damage caused by the product supplied, that would not be a claim under the policy.”

The NCC and the various dispute resolution bodies that deal with these matters can assist in bringing about the resolution of a dispute but they do not ‘side’ with the consumer as this would be unfair, he says. “They do of course investigate the complaints to check if the consumer has grounds for protection under the CPA. Businesses that blatantly flout the law can face stiff penalties (up to 10% of their annual turnover) so it is in their interests to participate in the process and to comply with the requirements of the CPA.”

“The CGSO creates an easily accessible platform so that consumers can ‘have their say’ without having to incur the costly legal expenses associated with actually approaching the courts. The time taken to resolve a dispute is generally much shorter in the CGSO (57 days on average) than in the High Court where it can take over a year to get resolved,” Colman concludes.

If it’s not on social media it hasn’t happened; a common belief among avid social-media users. But not every memorable experience deserves an Instagram video – especially if it is of you dancing on the table at your staff party, or taking on that infuriating colleague who has been working on your nerves all year.

Social media practitioners and labour lawyers warn that the embarrassment of being immortalised online could be just the beginning of your troubles as companies continue to test the parameters of labour law in relation to social-media use.

According to labour lawyer Terry Bell, employees would be liable for damages if they defamed their company in any way.

“And disciplinary action can be undertaken based on company rules,” said Bell.

Employees might see staff functions as an opportunity to let their hair down but they should remember that companies are not likely to forgive those who damage corporate reputations.

“At Christmas parties employees sometimes let more than their hair down and they should be very careful about what they put on social media,” said Bell.

Recruitment specialist Auguste Coetzer of Taleng Africa said the tone should to be set by companies.

Coetzer said companies should take stock and establish the objectives of the party and whether it should take place at all, adding that awards ceremonies might create division.

“If broad recognition of team success is crucial, the firm will avoid the mistake of combining the occasion with a prize-giving for exceptional performers. You can’t celebrate everyone and reward a few stellar achievers at the same event,” he said.

Coetzer said companies should not be afraid to warn employees about company policy on social media.

Head of corporate and experiential events at Event Affairs Megan Mcilrath said it was important to thank employees for a great year and not leave social media education to the eve of an event.

“It’s important that companies entrench a social-media and general behaviour policy so that at any stage employees know what is and what isn’t allowed regarding social media,” said Mcilrath.

Social-media consultant Sheena Kretzmer said companies and employees should be prepared for the fallout of staff parties in a social-media age in which live video blogging is the norm.

By Shenaaz Jamal for www.timeslive.co.za

ICT has progressed to a point where it makes no sense for businesses to use single or one-dimensional channels. Today, the advent of social networks, social media and other interactive platforms means that any sized business in any sector or industry can extend their reach to a wide audience immediately. Omni-channel communication has become the order of the day.

Omni-channel communication involves the use of several platforms, often simultaneously, including print, email, social, SMS and MMS.

Fred Steinberg, MD of Communication Genetics, a leading provider of customer communication solutions, believes that omni-channel communication makes sense because it offers so many more ways to engage the customer and these all promote interaction.

“This type of communication is directed at a wide base but can be personalised, so that individuals feel as if they’re the only ones being spoken to. It is a very effective means interaction and because these are all digital platforms, they are by default responsive. More businesses are beginning to tap into the potential that social platforms like LinkedIn, Facebook and Twitter offer, realising the intrinsic value of channels that are pervasive, dynamic and powerful,” says Steinberg.

Despite some of the more traditional business environments, like banking and financial services, still struggling to get to grips with social media and applications, the truth is that any credible business today cannot ignore the benefits of the omni-channel approach,” says Steinberg.

One of the main advantages that most markets are now familiar with is that of being able to ‘brand’ this communication – in other words tailor this communication to reflect the business, keep it fresh in the minds of recipients and basically use it as a form of consistent, low-cost but always accessible advertising.

The reality is that to continue operating, sustain performance and indeed capture market share, businesses must embrace digital tools and leverage these channels to integrate processes and procedures that form part of their core business.

People are working longer and in countries like South Africa, where we have a chronic skills shortage, workers with years of experience have invaluable knowledge to share at the workplace.

But how should companies adapt to make sure an ageing workforce feel like they still belong?

Linda Trim, director at Giant Leap, workplace specialists who consult across Africa, says that workplaces need to adapt for an older workplace and have been slow to do so so far.

“Population ageing is a global phenomenon and workplaces need to modify to accept the reality of older workers. It is increasingly important to retain workers as they get into their fifties, typically the time when businesses start to lose all that prized expertise.”

Trim says there are five key office considerations businesses need to retain and attract an ageing workforce:

1) Lighting, especially natural lighting

Natural light should be used in concentration spaces wherever possible, with fabric curtains and blinds to diffuse light. Task lights at the desk are an important consideration for ageing eyes and for reading printouts off-screen, and a lower and more pleasant level of general ambient lighting within the concentration space.

2) Good acoustics

Says Trim:”Having spaces where people who battle to hear can work easily especially with technology such as Skype is very important. We also suggested the use of sound-masking systems like acoustic boards that can reduce distracting noise which are appreciated by everyone in busy offices, not just older workers.”
3) Private space

All generations get sick and tired of work at times and would like somewhere to go to recuperate briefly from the stress and noise of the normal work environment.

“The provision of contemplation space that can provide a calm, quiet environment free from distraction and surveillance is important to making ageing workforces more productive – and evidence suggests it would be popular with everyone,” saysTrim.

Trim says that here Giant Leap advocates strong natural and organic elements, rich with plants, water, fabric banners and adjustable lighting, giving a different feel to the office atmosphere elsewhere.

It isn’t just older workers who crave quiet and privacy when they want to concentrate on solo tasks – or dedicated tools and spaces for collaboration when they want to work in a team.
4) Age Appropriate design

Age-appropriate design that helps, rather than unthinking design that hinders and stigmatises, can make a huge difference to quality of life. “And this was never more so than in considering access to work and the workplace for older people.” Trim noted.

For example older workers don’t want to feel incapable and frustrated by things like unadjustable chairs, confounding IT systems and cupboards that they just can’t reach. That also don’t want to feel they need someone to help them all they time but it’s a quick fix to deal with this.

“Offering things like easy access to files, height adjustable furniture and simple IT can make a difference.

“Older people who have honed their skills in the pre-digital era also prefer to spread out sheets and data, and not worry about confidentiality or tidying away before the project is completed.”

Bigger desks to spread things out and bigger backdrops to pin things up will enhance collaborative modes of working for older people.
5) Wellbeing focus

“Things like user-controlled lighting, ergonomic furniture, natural soundscapes and other humanising features all contribute to a sense of wellbeing,” says Trim.

As mentioned, private spaces that are governed by strict wellbeing protocols for working (for example, no mobile phone calls or loud conversations, as in a library). These spaces should be located away from noisy facilities such as kitchens and cafés, print-rooms or social spaces. They should be equipped with different types of furniture and adjustable settings to allow for a range of working positions, as poor ergonomics and uncomfortable posture will adversely affect the ability to focus.

Conclusion

“While older knowledge workers may well be compromised in the office environment by the inevitable effects of ageing on vision, hearing, posture, memory, balance and dexterity, they tend to compensate cognitively in terms of wisdom, experience and decision making.

“They are also, contrary to popular myth, flexible learners – they have adapted to several waves of business and technological change over lengthy careers. It’s makes economic sense for companies to make them feel at ease in the workplace,” Trim concludes.

Sick leave in business requires effective management; its mismanagement or abuse can be detrimental to any company in terms of financial and employee performance.

A dictionary definition of sick leave is “an absence from work permitted because of illness and the number of days per year for which an employer agrees to pay employees who are sick”.

According to the Basic Conditions of Employment Act (BCEA) an employee is – during every sick leave cycle – entitled to paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

The provisions for sick leave do not apply to:

• Employees who work less than 24 hours a month
• Employees who receive compensation for an occupational injury or disease
• Leave over and above that provided for by the Act.

The BCEA prescribes that in the case of standard employment i.e. a 5-day working week, the employee would be entitled to 30 days paid sick leave during each sick leave cycle.

A sick leave cycle is calculated from the date of engagement up to the 3rd anniversary of that date; in other words, for employees with a 5-day working week an employee is entitled to 30 days sick leave every 3 years. This sick leave does not accumulate from cycle to cycle, after each cycle. All unused sick leave is forfeited.

It is important to understand that sick leave is given by statute as an entitlement; it does not accrue. It is also a form of contingency, so if, even early in their service, an employee requires extended sick leave, the whole thirty days may be taken. In the event that the employee leaves, the employer cannot claim the sick leave back.

However, the BCEA makes provision for this, by limiting paid sick leave during the first six months of employment to 1 day for every 26 days worked. The employer may thus draft the employment contract with this provision, whereafter the three year cycle will commence from day 1, month 7.

It should be noted that the BCEA protects the employer and makes provision for the employer to require proof of illness or injury when an employee has taken sick leave.

If, however, the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and the employee is unable to provide a medical certificate on the employer’s request, the employer is not required to pay the employee for the absence. The medical certificate substantiates a claim for paid sick leave.

This is applicable to most industries with some variations in industries regulated by bargaining councils, sectoral determinations or other agreement regulated by law.

The Metal and Engineering Industries Bargaining Council Sick Pay Fund (MIBFA) provides for additional sick pay-benefits for each completed day of absence from work through illness and injury which is in excess of the paid sick leave entitlement. Additional sick-pay benefits are payable at a rate of 50% of the weekly earnings of a member for each completed week of absence from work.

Furthermore where a member’s absence from work is not a complete week, sick-pay benefits shall be calculated PRO-RATA for each complete day of absence. This amount is payable up to maximum of 30 weeks. In other words, once an employee’s 30 days paid sick leave has been depleted he/she is entitled to 50% of their wages paid by MIBFA up to a maximum of 30 weeks.

Although little has changed in terms of sick leave regulation (since the minimum was changed from 10 days per year to 30 days in 3 years in 1997), Human Capital Management (HCM) and HR experts are concerned about the efficiency with which this facet of HR management is being handled.

The issues

Nicol Myburgh, head of HR Business Unit at HR and HCM specialist services provider CRS Technologies, says many employers either grant sick leave and never follow up to obtain a medical certificate or grant sick leave indefinitely without capturing and tracking this on a system to ensure availability of leave before granting it.

“Another mistake employers make is accepting a medical certificate as proof for sick leave without making sure if the employee was actually “booked off” for the full period of absence,” says Myburgh.

Again CRS Technologies points to the BCEA and specifically the clause which states that the medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients, and who is registered with a professional council established by an Act of Parliament.

Another issue is that sick leave entitlement poses a risk to employers, Myburgh explains.

The key message from CRS Technologies is only an employee who is too sick to work, may claim paid sick leave. If the employer is in a position to prove that the employee was not sick, disciplinary steps may be taken against the employee.

“Sick leave abuse is difficult to determine and prove, and many factors should be considered before an employer makes a claim of sick leave abuse for instance. The amount of time taken for each absence, the specific days that are taken (the day before or after a weekend or public holiday) or any inconsistencies for each staff member should be taken in to account, says Myburgh.

Studies show 53% of South Africans don’t take their annual leave. SA may be a hard-working nation, but these religiously diligent habits have a downside.

Not all employees jump at the chance to take their annual leave for various reasons, including fear of falling behind at work or disappointing their manager. However, employees who take adequate time to rest make for a healthy business and taking leave should be encouraged. Here’s why:

Down with stress
By taking a break, employees get a chance to re-energise mind and body. Studies confirm after a holiday, employees are less stressed and can manage work responsibilities more efficiently. Accumulative workplace stress can lead to headaches, anxiety, high blood pressure and depression – all reducing work performance and productivity.

Workplace productivity
A rested mind and body boosts productivity and creativity – and allows employees to approach tasks with perspective and a fresh mindset. Recognise hard work and targets met by offering incentives that extend annual leave (bonus leave days).

Giving an extra annual leave day on an employee’s birthday or offering a half day for overtime worked highlights the importance of taking time off to recharge. The importance of restoration is rooted in our physiology. Human beings aren’t designed to expend energy continuously – we’re meant to pulse between spending and recovering energy.

Decline in absenteeism
Encouraging employees to take annual leave is also linked to individual and organisational well-being. A healthy and happy employee is less likely to be absent on an ongoing basis. Stipulate a date by which employees should use their leave, reminding them to book for busy periods like school or summer holidays. Consider closing during a major holiday period, if possible, and encourage all employees to take leave.

Positive energy
Research shows recharging promotes a positive outlook towards new projects and challenges. Moreover, this positivity is often infectious and can be felt throughout the business. Instil a holiday-friendly atmosphere by responding positively when an employee applies for leave. They’re less likely to apply for leave if they feel it’s frowned upon or discouraged.

Creating an environment that encourages taking accumulated holiday leave offers the opportunity to improve the mood and productivity of employees. It can also help better manage your workforce. Managers can avoid last-minute holiday requests by making it easy to apply for annual leave and responding to requests in a positive way.

A happy team is more engaged and likely to view their jobs as meaningful work to be pursued for the long-term. As much as business owners want to grow a workforce of super-human employees, humans need to rest. For real growth, give employees the leave they deserve.

There are easy ways to boost worker productivity that won’t break the bank or take up much office time.

Adding plants, art and colour to workplaces are proven ‘quick fixes’ to make offices better work places for employees while driving sharp rises in worker productivity.

Linda Trim, director at Giant Leap, workplace specialists who consult across Africa, says that research showed that making sure offices had these elements typically boosted productivity by 25 to 30%.

“The recent trend to creating sanitised, Spartan, uncluttered offices, simply do not make people more productive. The lean, pared down office is not best for concentration or worker comfort despite the zeitgeist thinking that no distractions means greater concentration.

“A green office says to employees that their employer cares about them and their welfare. Adding plants will pay off through an increase in office workers’ quality of life and productivity.”

Another factor that made offices better places to work was the right use of colour.

“Bland grey, beige and white offices induce feelings of sadness and depression while purple and orange workspaces also contribute to feelings of gloominess.”

Trim noted that scientific studies have shown that colours don’t just change our moods, they also profoundly impact productivity for better and for worse.

“That’s why it’s best to decorate your workplace with a vibrant mix of stimulating hues that increase output and spark creativity.

“Restful green and calming blue improve efficiency and focus. They also create an overall sense of well-being.”

Trim says that red was a particularly alarming colour for the workplace and should only be used to draw employees attentions to something. Yellow should be added to places where creativity is a demand of the job and can complement the greens and blues.

A third factor that has proven to enhance productivity was art.

“An enriched space makes people feel much happier and work better and a very good way of doing this is by using art.

“This doesn’t mean dreadful ‘motivational posters’, which say things like “there is no I in team” or ‘whatever the problem, be part of the solution’, because these don’t work at all.

“Art doesn’t make every person who looks at it inherently more creative but it gets them involved on a more intellectual level.

“Aesthetic in the truest sense means energy-giving which is what a workplace needs, rather than a bland, industrial environment which can be more like giving workers a dose of sleeping pills,” says Trim.

She notes that a study by Dr Craig Knight who studied the psychology of working environments for 12 years at the University of Exeter. He showed that they had never found that lean offices created better results and the more involved people were in the enrichment process, the more they are able to realise a part of themselves in the space.

“People spend most of their lives at work and being in an office can become very routine. But if they are surrounded by plants, judicious use of colour and pleasing art it can create a work environment with a sense of intrigue and engagement, “ Trim adds.

Another advantage of good workplaces was that it help retain staff and reduced the amount of sick leave people took.

A recent survey of 12 000 office workers nationwide has revealed the most important things we demand from our workplaces.

The survey also uncovered the things we like best and hate most about the place where we spend a third of our lives.

Richard Andrews, MD of Inspiration Office, says the poll threw up some surprising findings.

“We asked people what was the most important thing for them in the workplace and 95% said access to good tea and coffee.

“This topped the list ahead of security (91%) and a healthy environment (87%) of what South African see as most important in the workplace.”

Rounding out the most important things was natural light (85%), greenery (71%), canteens (65%) and comfortable chairs (52%).

“Essentially it’s all the smaller things that people really need to be happy in the workplace,” says Andrews.

The poll also quizzed people on their biggest annoyances at the workplace.

Top of the list was loud colleagues, followed by colleagues who “smelled up the place” by eating lunch at the desk.

Third was ‘unbearable bosses.’

“It seems as many offices move to open plan design, the trend of squeezing more people into less space has brought workers in closer proximity to each other. There is nowhere to hide from other peoples’ habits.

“People talking loudly on the phone, endlessly talking to colleagues and making a general ruckus (88%) topped the list of the biggest peeve.

“This was followed closely by people who eat lunch at their desks thereby smelling up the workspace (76%).”

Andrews added that bad bosses (66%) was in third place particularly those that were hyper-critical and micro managers. Lack of privacy also featured with just over 50% citing that as an office downside.

Other strong office dislikes were dreary office spaces, long meetings, dress codes and working hours.

When asked about the best things about the workplace, the social aspect of meeting new people and becoming friends with certain colleagues was the best thing about the workplaces according to 80% of respondents.

Also favourable was the ‘learning and personal development’ that the workplaces offered (61%) and this was followed by ‘a place to make money’ at 49%.

Filling out the remaining office positives was ‘stimulation’, ‘sense of worth’ and ‘contribution to society.’

Andrews says that more businesses in South Africa were moving to address concerns such as those highlighted by the survey.

“Quiet spaces, places to make private calls and a trend towards more comfortable and relaxed spaces will improve the day to day office experience.”

The changing workplace

Innovation hubs, separate and relaxed spaces designed for creativity and collaboration, are quickly growing in popularity in South Africa as a way to drive innovation in a relaxed “feel at home” atmosphere.

“Workplaces are changing,” says Richard Andrews, MD of Inspiration Office, an Africa-wide office space and furniture consultancy with offices in Johannesburg and Cape Town.

“Every leading organisation knows that it needs to innovate to stay ahead. According to a McKinsey survey, 33% of global business leaders rank ‘innovation of new products and services’ as their company’s top focus.”
“But innovation is hard. How do you make ideas grow especially when companies become more globally integrated as business becomes national or global?

“One of the best ways it to make is easy for people to get together in a casual environment. Research shows that 70% of ideas come from when people collaborate.”

He notes that Innovation Hubs create a culture of innovation by supporting creative collaboration, project teams and individuals.

Inspiration Office has recently helped create Innovations Hubs in South Africa for Google, E&Y, General Electric, Accenture and Standard Bank to name just a few. General Electric’s R500m Innovation Hub in Johannesburg is the first of its kind in Africa and is similar to its other hubs around the world.

Magnus Taljaard, head of Digital Customer Solutions at Standard Bank Group, says about the creation of its hub: “We wanted to create a highly collaborative and engaging environment where our digital product teams can thrive and create solutions our customers love.”

Andrews notes that businesses need spaces that support both collaboration at a distance and face-to-face and that also promote privacy as individuals need to do their best thinking. Hubs when not in use by groups, also provide private places to work.

He notes that during the last few years, work has become dramatically more intense. Business tasks today are more varied and more challenging, and in some countries workers are increasingly mobile.

“Employees in every organisation are working longer and harder, and they need a physical environment that not only supports them, but also re-energizes and inspires them.

“Some organisations embrace the idea of employees working in a coffee shop or other third place for a variety of reasons. Employees may need places where they can relax or work undisturbed. Already 31 percent of full-time employees in the United States do most of their work away from their employers’ locations. South Africa is following the same trends.”

Andrews says millennial workers are particularly keen on mobile working but need to have a place where they meet colleagues to catch up and think together.

He also pointed out that the idea of having an opportunity to move during the day is important.

“People hate the idea of being stuck at their desks all day.”

Businesses increasingly see the need to offer employees a place where they can take a break from their usual workspace, choose from spaces ranging from individual to large group settings, and maintain close connections with colleagues and the organisation.

“It resets your mind and gets you reengaged. Having spaces that are appropriately designed for the activity that’s going on makes that activity much more productive. What we’ve installed for clients tend to cater for a ‘palette of postures’ so people can sit or lounge in a way that’s most comfy for them. We also tend to use bright, colours and funky furniture not typically found in the more formal offices spaces.”
Innovation Hubs also help to manage commercial property costs by having fewer people in the office if companies allow remote working.

Characteristics of Innovation Hubs

Technology Integration
More than anything, highly effective hubs that accommodate real work must provide great technology. Users come for refreshment and with the expectation that the place will provide what they need for effective performance, so technology needs to be immediately available and convenient.

Design Attributes
Design elements create the ambience of a corporate hub and influence worker reaction. Finishes, lighting, music, scent, inspiring artifacts, artwork—these all work together to attract users by creating a sense of welcome. They also tell users how to behave in a space.

Hosting Characteristics
Hosting is ultimately about making employees feel connected to the organisation and to each other. The way employees are welcomed and supported lets them know they are valued and demonstrates that the organisation recognises the challenges of work and life integration.

Where should companies locate an Innovation Hub?
The corporate cafeteria is an obvious place where a company can create a corporate third place and better leverage under- utilised space. It isn’t the only answer, though. A company might need more locations to hold meetings, for example.

Andrews notes that some project groups often go off-site to hotels.

One would think that if an employee is found to be under the influence of alcohol at work it is a straightforward dismissible offence. Recent case law has shown that this is not necessarily so.

Employers often operate under the mistaken belief that testing positive for alcohol equates to the employee being under the influence of alcohol.
Alcohol and drug abuse is a form of misconduct. Schedule 8 of the Code of Good Practice of the Labour Relations Act, No 66 of 1995 (LRA) recognises misconduct by an employee as a fair reason for dismissal.

There are two scenarios in which an employee may be charged for their use of alcohol at the workplace:

The first scenario is where the employee’s drunkenness can be proven by sight, smell and/or the conduct of the
employee. Factors showing drunkenness include aggressive behaviour from the employee, slurred speech and bloodshot eyes. The degree of drunkenness has to be to such an extent that it impairs the employee’s ability to work. The onus is on the employer to prove this. No expert witness is required for such purposes.

The second scenario is where an employee tests positive for alcohol on a breathalyser apparatus. A positive outcome does not necessarily prove that the employee is under the influence of alcohol or that the employee’s ability to work has been impaired. Employers often mistakenly believe that a positive test result is sufficient proof to show that the employee was under the influence of alcohol and then mistakenly charge the employee for being under the influence of alcohol. Recent case law has confirmed that a positive test result is not necessarily sufficient to dismiss an employee. In Tosca Labs v CCMA 2012 33 ILJ 1738 (LC) the Labour Court found that a positive test result on a breathalyser test is not sufficient proof to indicate that the employee was under the influence of alcohol. The court referred to Tanker Services (Pty) Ltd v Magudulela 1997 12 BLLR 1552 (LAC) which stated that the real test is whether the employee’s competence to perform their work has been impaired. In this case the employee was able to perform his tasks and the court held that the dismissal was substantively unfair.

What should an employer do?

• The employer should adopt a zero tolerance in terms of its alcohol policy in the workplace. Such policy should be specific and also provide for a summary dismissal, even when the employee has just been tested positive for the use of alcohol or drugs. The rational for such policy should be based on the safety considerations of the employer. This means that an employee may be summarily dismissed irrespective of whether his/her ability to work is impaired or not. To adopt such a policy depends on the status thereof and may sometimes simply require consulting with the employees before the implementation of such policy. According to the employment law the employer should always ensure that all employees are aware that there is a zero tolerance policy and that if they test positive for any usage of alcohol, they will be in breach of the policy and may be subjected to disciplinary action and possible dismissal.

• In addition to the above, the breathalyser apparatus should be properly calibrated and the person administering the test should be trained to do so correctly. The test should also always be done in the presence of a witness.

• However where possible and applicable, evidence should preferably be obtained to show that the employee’s ability to work was impaired – if that was indeed the case.

• If it emerges that an employee is dependent on alcohol the employer has an obligation to consider providing counselling and assist the employee as is set out in item 10 of Schedule 8 of the LRA.

         

           

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