The Supreme Court and now also the Constitutional Court has defended an employee who on arriving at work tested positive for alcohol during a breathalyser test (0.32 ‰ on the first test and 0.23 ‰ on the second test), the presence of which was confirmed by a subsequent blood test 0.11 ‰, and declared the dismissal notice given to the employee to be invalid. The courts also took note of the fact that the employee had never caused any trouble and had not previously been accused of misconduct.
Employees are, of course, generally required not to consume alcohol and to not enter the workplace under its influence. However, the Supreme Court’s assessment regarding the issue of the actual influence of alcohol was key, stating that the presence of alcohol does not automatically mean that an employee has also been influenced by alcohol. The Supreme Court assessed both the measured values where a value close to 0.2 ‰ is considered inconclusive and also the fact that the alcohol intake must be to such an extent that it has an effect on reducing the employee’s mental faculties and overall readiness.
The Supreme Court concluded 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 reason for dismissal. In this particular case it considered the breach to be a simple breach of work duties (and not a serious breach) and also defined the criteria which should be taken into account in cases like this (the employee’s position, his degree of fault, the intensity of the breach of obligation and the damage caused).
Similarly, the Constitutional Court did not agree with the constitutional complaints filed by the employer. On the contrary, it confirmed that alcohol in such a small amount cannot fulfil the grounds for dismissal stated above and said that the Road Traffic Act also works with the level of alcohol that needs to be taken into account.
Each case must therefore by assessed separately and the reason for dismissal needs to be properly determined according to the individual circumstances of the case.