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Drugs, Lies and Red Tape

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* 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. – PowerPoint PPT presentation

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Title: Drugs, Lies and Red Tape


1
Drugs, Lies and Red Tape
2
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)

3
  • 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)

4
  • 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)

5
  • 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

6
  • 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

7
  • 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)

8
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9
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

10
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11
  • 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.

12
  • 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

13
  • 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.

14
  • 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

16
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.

18
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19
  • 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.

20
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
24
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25
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
26
  • 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.

27
  • 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.

28
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
29
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30
  • 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.

31
  • 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.

32
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
    39391
  • 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
    v2007.pdf
  • 8. http//www.hst.org.za/uploads/files/chapter23_
    00.pdf
  • 9. http//www.iol.co.za/index.php?art_idct200103
    23194009385A3232263
  • 10. http//www.dispatch.co.za/1999/09/18/southafr
    ica/DAGGA.HTM http//www.iol.co.za/general/newsvi
    ew.php?click_id13art_idqw9718794
    61815B242set_id1
  • 11. http//www.e-doc.co.za/modules.php?nameNews
    filearticlesid1019
  • 12. http//www.hst.org.za/uploads/files/chapter23
    _00.pdf13.
  • 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
    /748-767-3254,12568.asp
  • 17. http//www.health24.com/Man/Work/748-764-3017
    ,14264.asp
  • 18. http//health.za.msn.com/article.asp?contentI
    D39391

33
  • 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
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