Employers, particularly those operating in safety-sensitive industries, often adopt strict zero-tolerance policies on alcohol in the workplace. While these policies are both necessary and justifiable, recent case law makes it clear that a positive breathalyser test does not automatically justify dismissal. What ultimately determines whether a dismissal will stand is not only the policy, which is essential, but whether the employer can demonstrate fairness, reliable evidence, and a proportionate response.
A useful starting point is the decision in Cipla Distribution Gateway (Pty) Ltd v Mike Mwale & Others. In this matter, the employee recorded a very low alcohol reading of 0.019%. He displayed no signs of impairment, and the employer relied heavily on its zero-tolerance policy to justify dismissal. However, the Labour Court found that the employer had applied the policy too rigidly and had failed to produce sufficient evidence to prove intoxication. There was no confirmatory evidentiary test, actually the physical check showed no evidence of impairment, no calibration certificate linked to the specific device used, and no evidence showing that the employee’s role posed a real safety risk. The dismissal was therefore found to be substantively unfair. The Court made it clear that a “mechanistic approach” to discipline, where a policy is applied without proper enquiry into the facts, is incompatible with fairness.
A similar outcome was reached in Chill Beverages International (Pty) Ltd v CCMA and Others. In that case, the employee tested positive after unknowingly consuming a cough mixture containing alcohol. Despite working in a role involving a degree of risk, he showed no signs of intoxication and had an unblemished disciplinary record. The employer dismissed him in line with its zero-tolerance policy. Both the CCMA and the Labour Court found the dismissal to be disproportionate. The Court emphasised that dismissal is not automatically justified by a positive test, particularly where there is no impairment, the explanation is credible, and the employee has a clean record. Once again, the failure was not the existence of the policy, but the employer’s inability to apply it fairly and contextually.
By contrast, the outcome in Babalwa Msitshana v CCMA and Seriti New Denmark Colliery demonstrates what a defensible process looks like. In this matter, the employee tested positive on two occasions, with a 20-minute interval between tests. The testing was conducted by a trained operator, the device was properly calibrated, and the procedure was followed carefully. In addition to the test results, there was supporting evidence, including the smell of alcohol and observations of the employee’s behaviour. The workplace was clearly safety-sensitive, and the policy had been consistently applied. The Labour Court found that the dismissal was fair. This case illustrates that where employers follow proper procedures and present reliable, corroborated evidence, courts are willing to uphold zero-tolerance policies.
When these cases are considered together, an important pattern emerges. The decisive factor is not whether the employee tested positive, but whether the employer can prove, on a balance of probabilities, that dismissal was fair in the circumstances. This includes demonstrating that the testing process was reliable, that there was evidence of impairment or real risk, and that the sanction of dismissal was proportionate.
One of the most common weaknesses in employer cases is over-reliance on a single breathalyser test. While there is no legal requirement to conduct a second test, doing so is widely regarded as best practice. A second test, conducted after a waiting period of approximately 15 to 20 minutes, helps eliminate the possibility of false positives caused by external factors such as mouthwash, medication, or recently consumed food. During this interval, the employee should not eat, smoke, or drink anything other than water. This simple step can significantly improve the accuracy of the result and strengthen the employer’s position in any subsequent dispute.
Employers should also be aware of the distinction between different types of breathalysers. Preliminary Alcohol Screening (PAS) devices are typically handheld and designed for quick, initial detection. While useful for screening purposes, they are not always sufficiently reliable to serve as conclusive evidence in disciplinary proceedings. Evidential Breath Tests (EBTs), on the other hand, are more sophisticated instruments designed to produce accurate and legally defensible results. Where possible, employers should use evidential-grade testing or confirm a positive screening result with a more reliable method, such as a blood test, particularly where the result is disputed.
Equally important is the need to support test results with additional evidence. Courts have repeatedly indicated that a numerical reading alone may not be enough, especially where the reading is low or contested. Employers should therefore record observable signs of impairment, such as slurred speech, poor coordination, or erratic behaviour, and obtain witness statements where appropriate. This type of evidence can make a significant difference in establishing whether the employee was genuinely under the influence.
Another critical consideration is procedural fairness. Employees should be informed of their rights, including the opportunity to challenge or confirm the test result. They should also be given an opportunity to provide an explanation, particularly where medication or other factors may be involved. Failure to follow a fair process can undermine an otherwise strong case.
Finally, employers must avoid the temptation to treat zero-tolerance policies as automatic triggers for dismissal. While such policies are valid, particularly in high-risk environments, they do not override the requirement to consider the individual circumstances of each case. Factors such as the employee’s role, the level of alcohol detected, the presence or absence of impairment, the employee’s disciplinary record, and the credibility of any explanation must all be taken into account. Even where an employee is on a final written warning, fairness and proportionality remain essential.
In conclusion, breathalyser testing is a valuable tool for managing alcohol use in the workplace, but it must be used carefully and responsibly. A single positive test, unsupported by reliable evidence and fair procedure, is unlikely to withstand scrutiny. Employers who take the time to implement proper testing protocols, gather comprehensive evidence, and apply their policies in a fair and measured manner will be far better positioned to defend their decisions. Ultimately, the goal is not simply to enforce rules, but to do so in a way that is both lawful and justifiable.
SEIFSA provides training on this important manner, namely the – “Managing Intoxication in the Workplace – Alcohol and Cannabis/Marijuana” workshop.
To note that SEIFSA is also conducting the, “Fair and Effective Discipline – Chairing and Initiating Disciplinary Hearings” workshop on 28 May 2026 in Boksburg, which can be offered in-house too.
Please don’t hesitate to contact the SEIFSA IR Department for any help and assistance on these matters or any other industrial relations matters.
Michael Lavender
Industrial Relations Manager
