Bears v !Hoaeb (HC-MD-LAB-APP-AAA-2021-00044) [2022] NAHCMD 55 (29 September 2022)

The respondent (employee) was employed by the appellant (Bears) in Windhoek in 2018, and from December 2019 worked as a Stock Controller at Bears Outjo. On 24 August 2020, the employee, while at work and during working hours, was suspected to be under the influence of alcohol. Bears suspended the employee. On 28 August 2020, a disciplinary hearing was conducted, where the employee was charged with being under the
influence of alcohol during working hours in breach of the company Code of Ethics. On the same date, the employee was convicted as charged, and dismissed with immediate effect.

The appellant’s internal procedures do not make provision for internal appeals. The employee thus referred a dispute of unfair dismissal to the Office of the Labour Commissioner, alleging that his dismissal was both procedurally and substantively unfair. The arbitrator conducted an arbitration hearing, and subsequently delivered an award on 18 June 2021, where he ruled that the termination of the respondent’s employment contract was substantively and procedurally unfair. Discontented by the award, Bears appealed against the entire award to the Labour Court. 

On appeal, the employer’s case was presented as follows: 

On 24 August 2020, Mr Diergaardt (the initiator) noticed that the employee was under the influence of alcohol as his speech was impaired/slurred. Two alcohol testers were purchased, but the employee refused to blow into them. The employee enquired as to what would follow if the tester revealed negative results, to which Mr Diergaardt responded that then he will tender an apology. The employee then agreed to take the test, the result of which was that he had alcohol in his system.

It is the employer’s case further that it has no rule on the limit of alcohol that may be in a person’s body; it is either you have alcohol in your system or not. This, the employer’s legal practitioner submitted, is in keeping with the appellant’s policy of zero tolerance against employees who are under the influence of alcohol at work. The employee was charged with being under the influence of alcohol. It was argued that the employee admitted to having drunk alcohol the previous night, and that he had a hangover. This, according to the employer’s legal practitioner, was an admission by the respondent that he had alcohol in his system. It was the appellant’s case that the respondent’s eyes appeared red, was argumentative, and smelled of alcohol. 

The respondent’s case, on the other hand, was that he drank alcohol on Sunday night, 23 August 2020, but denied being under the influence of alcohol on Monday, 24 August 2020. The respondent further stated that he did not consent to be tested for alcohol, but was forced to do so. He refused to be tested by Mr Diergaardt, who had no expertise in operating the testing apparatus. It was the respondent’s version that the result of the test did not determine the level of alcohol in his system.

It was submitted on behalf of the employee that the employer failed to prove the charge that the employee was under the influence of alcohol during working hours. The legal practitioner for the employee expanded on his submission that the employer relied on the evidence of Mr Diergaardt who tested the respondent for alcohol, yet Mr Diergaardt lacked expertise in alcohol testing. Mr Diergaardt further lacked the expertise to provide evidence on impaired speech, the alleged red eyes of the employee and the smell of alcohol, so it was argued. He further disputed the allegation that the respondent admitted to having alcohol in his system. 

The employee, through his legal
practitioner, further attacked the alcohol tester utilised. He submitted that no evidence was led that the tester was calibrated to indicate the level of alcohol detected. According to him, Mr Diergaardt could also not clearly state, at arbitration proceedings, whether the test result was green or orange, following his evidence that orange meant no alcohol in the system while green showed the presence of alcohol.

The Labour Court considered the scheme of the employment relationship between the appellant and the respondent in respect of the misconduct charge of being under the influence of alcohol (intoxication) during working hours, and whether the arbitrator misdirected himself when he found that it was not proven that the respondent was under the influence of alcohol during working hours. In considering these issues, the Court stated that:

‘[31]…The respondent’s employment contract incorporates the appellant’s Code of Ethics. Clause 5.4.4 of the Code of Ethics provides, inter alia, that: 

‘To ensure a safe, healthy and secure work environment, all Lewis stakeholders must: …not be intoxicated or under the influence of illegal substances during the performance of duties.’

[32] Category D of the list of offences provides that an offence of possession, supply or consumption of drugs, which covers that of being under the influence of an intoxicating substance, including alcohol, while on duty, attracts a penalty of dismissal.

[33] The respondent’s employment contract and the Code of Ethics does not define what it means to be under the influence of alcohol or an intoxicating substance.

[37] The question that remains to be answered is whether the arbitrator misdirected himself when he found that it was not proven that the respondent was under the influence of alcohol during working hours.

[38] ... In Mondi Paper Co v Dlamini, the court discussed the dismissal of an employee on an alcohol-related charge, and said the following:

‘Mr Chadwick, who appeared for the Appellant, was inclined to concede that what was contemplated by drunkenness was an impairment of the faculties to the extent that the ability of the person to perform his job was impaired, or there was a danger to safety. I understood Mr Tanner for the Respondent to rely on the test referred to in Albertyn and McCairn Alcohol, Employment and Fair Labour Practice at page 97, which he summarised as follows (I quote from his heads of argument):

“Intoxication involves an impairment of the employee’s faculties, a discernible effect upon his behaviour beyond the limits of sobriety, not merely the smell of alcohol on his breath.”

Although, as I have said, the evidence indicated that the Respondent had consumed alcohol, which was not denied, there was no accurate record of precisely how much alcohol he had consumed, and there was some uncertainty, largely due to the Respondent’s own evidence and attitude during the whole proceedings, as to how much he had consumed and when he consumed it.

In my view, the evidence did not justify a finding that the Respondent was guilty of drunkenness, giving to that word the meaning which one would normally give to it in relation to a person who had consumed alcohol to excess as opposed to one who has merely consumed some alcohol. The offence is not, as I have said, consumption of alcohol or having consumed alcohol before coming on duty, it is one of drunkenness, and in my view that offence was not proved.’

[39] In Tanker Services (Pty) Ltd v Magudulela, the court considered a matter where an employee was dismissed for being under the influence of alcohol while driving a 32-tonne articulated vehicle belonging to the employer, and said the following:

‘The difficulty with proving the charge brought against the respondent is that the 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 labourer 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. The question which I should ask myself is, therefore, whether the respondent’s 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 hazardous substances. ’

[40] It is apparent from the above authorities that in order to prove the charge of being under the influence of alcohol, the employer ought to lead evidence to show that the employee’s ability to carry out his or her work was impaired by the alcohol to an extent that he or she could not render the skills expected from a sober person. In my view, the employer must lead evidence to clearly demonstrate the extent to which a person’s ability is impaired, and that he or she could not render services even to the minimum standard required by the employer. 

[41] Collins Parker, in his work, Labour Law in Namibia, discussed drunkenness at the workplace and remarked as follows:

‘It does not matter whether the substance was consumed during or outside working hours, or at his workplace or outside it: the test is whether the employee, because of drunkenness, is incapable of performing his service to his employer in terms of the contract of employment.’ 

[42] In Tanker’s matter (supra/above), it was settled that before one is accused of being under the influence of alcohol, the degree of intoxication should be considered. In my view, there are two issues that come into play. Firstly, it must be established that because of alcohol consumption, an employee is incapable to exercise the skill required or render services to his or her employer, even at the minimum standard required. Secondly, the level of intoxication must be determined. It is difficult to imagine, depending on person to person, that a bare minimum quantity of alcohol may impair the faculties of an employee to such an extent that he or she is unable to exercise the required skill or perform services required by the employer because of such limited amount of alcohol. 

[43] I, therefore, find that having taken alcohol does not automatically manifest itself into being under the influence of alcohol. One may take alcohol but still maintain his or her faculties, and carry out his services with the required skill and care.

Having considered authorities and the arguments submitted for and against the parties, the court held that:

If employees are charged with being ‘under the influence of’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of rendering the expected services.

The appellant (Bears) failed to prove the charge of being under the influence of intoxicating alcohol against the employee on a balance of probabilities. 

The appellant failed to establish that the employee did not render services required from him even at a minimum level due to alcohol intoxication. 

Held further that, the appellant failed to prove the level of intoxication of the employee and as a matter of consequence, it cannot, therefore, be said that the appellant established a valid and fair reason to dismiss the employee.

Held further that, a matter not raised in the notice of appeal is not available for the appellant to pursue during the appeal. The notice of appeal did not contain any ground that questioned the order of reinstatement in the award, but cried foul in the heads of argument that the order was not fair. 

As a result, the award issued by the arbitrator in favour of the employee was confirmed insofar as it was held that the dismissal was substantially unfair, and the appeal against the arbitration award was dismissed. 

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