The Constitutional Court has followed the Supreme Court in defending an employee who tested positive for alcohol during a breathalyser test when he arrived for work (0.32 ‰ on the first test and 0.23 ‰ on the second test). The presence of alcohol was borne out by a follow-up blood test of 0.11 ‰ and the Constitutional Court declared that the employee should not have been given a dismissal notice. The courts also noted that the employee had not caused any trouble in the past and had not been accused of misconduct.
Obviously employees are, generally, not allowed to consume alcohol or to come to work under the influence of alcohol. However, the Supreme Court’s assessment concerning the actual influence that alcohol has was crucial when it declared that it cannot be automatically inferred that the presence of alcohol means that an employee is also under the influence of alcohol. On the one hand, the Supreme Court assessed the measured values where a value close to 0.2 ‰ is considered inconclusive and, on the other hand, the fact that the alcohol needs to be consumed in such an amount that it has an effect on reducing the employee’s mental capabilities and general preparedness.
The Supreme Court came to the conclusion that the “positive detection of alcohol in an employee does not always (automatically) mean a breach of duty of such intensity that it could be qualified as a serious breach of duty” and would in itself be grounds for an employee’s dismissal. It decided in this particular case that the breach was merely a breach of work duties (and not a serious breach) and also specified the criteria which need to be taken into account in cases like this (the employee’s position, his degree of fault, the intensity of the breach of duty and any damage caused).
Likewise, the Constitutional Court did not support the constitutional complaints that had been filed by the employer. On the contrary, it confirmed that such a small amount of alcohol cannot fulfil the grounds for dismissal stated above and said that the Road Traffic Act also deals with the level of alcohol that needs to be taken into account.
Therefore, each case must by assessed individually and the reason for an employee’s dismissal needs to be properly determined according to the specific circumstances of the case.
