Key Points:

Peru's highest court has ruled that a worker who was dismissed for allegedly being drunk at work should not have been sacked and should be reinstated.

This caused headlines around the world, from China  to Macedonia . The general reaction was bemusement at what was taken as a ruling that workers cannot be fired for being drunk on the job. This Reuters blog is a classic example.

However, a more detailed report by the BBC  suggests the court did not say workers cannot be fired for being drunk on the job.

Apparently the worker, a street cleaner, merely had alcohol on his breath. The court said the sacking of Pablo Cayo, who worked in a suburb of Lima, had been excessive and that he should be reinstated.

One of the judges said that under the law, workers could be sacked if they regularly turned up to work drunk, which was not the case with Cayo, who told Peruvian media that the night before he was sacked he had attended a wake.
"I didn't turn up drunk, just smelling of alcohol," he said.

The decision prompted criticism from government ministers. Peru's Labour Minister, Jorge Villasante, said the ruling could set a bad example for other workers, while Prime Minister Yehude Simon said the ruling was "shameful".

In New Zealand, this case would be decided by reference to whether the employee was under the influence to the extent they could not properly perform their duties (except in safety sensitive roles, where a stricter test might be applied). The court would hear evidence from witnesses and would take account of any test results, if available.

The fact that an employee still has alcohol on their breath after drinking the previous evening does not necessarily mean they cannot do their job. If it did, our unemployment statistics might look a little different!

It seems to me that the Peruvian court's decision was a sensible one, despite the fuss it appears to have caused.


Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.



Photo by Dean Purcell