Alcohol at work: Managing breathalyser failures lawfully and fairly
BY GRETCHEN ANKER
ALCOHOL USE in the workplace remains one of the most common causes of disciplinary disputes. A failed breathalyser test, if not handled correctly, can expose an employer to reinstatement orders despite genuine safety concerns. Here’s what employers need to know at plant level to manage these cases fairly and lawfully.
Confirm the test
• The breathalyser must be calibrated and administered properly.
• Use a competent person and record the result immediately.
• Always do a second test a few minutes later for verification.
Assess the evidence
• Don’t rely only on the breathalyser. Observe visible signs of intoxication (speech, balance, odour, behaviour) and record observations in a signed statement by the tester or supervisor.
• Offer the employee a chance to state their version (e.g. mouthwash, medication, prior night drinking, morning breakfast).
• Note the time of the test and the start of shift.
Apply company policy consistently
The company’s assistance is important if the employee states that he/she has an alcohol dependency problem. Immediately inform HR, and provide the necessary help and assistance in accordance with the company policies, and document all assistance given.
If the employee shows an absenteeism pattern, this can also be used to determine dependency. In NUM obo Maruapula/ Eskom Rotek Industries SOC (Pty) Ltd [2025] 10 BALR 1122 (CCMA), the CCMA upheld a dismissal where the employee claimed alcoholism but had repeatedly failed to attend rehabilitation. The commissioner found that an employer is not obliged to tolerate ongoing misconduct under the guise of incapacity where the employee refuses assistance.
In Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594 (LC), the Court held that where there is no proof that an employee has a dependency problem, the fact that an employee was under the influence of alcohol could not be treated as incapacity. The Court further held that where an employee consciously consumes alcohol before reporting for duty, he was guilty of misconduct and could be fairly dismissed.
Positive breathalyser result ≠ automatic dismissal: Impairment of the employee
In Chill Beverages International (Pty) Ltd v CCMA & Others (C160/2024) [2025] ZALCJHB 298 (14 July 2025), the Labour Court held that a zero-tolerance policy does not relieve an employer from its obligation to show that dismissal was warranted. Although the employee had tested positive, he offered a credible explanation (medication containing alcohol), showed no visible signs of intoxication, and had a clean disciplinary record – the test result alone was not enough.
In Msitshana v CCMA & Others (JR 271/2023) [2025] ZALCJHB 424 (9 Sept 2025), the Labour Court held that a positive alcohol test in itself does not automatically justify dismissal, particularly where the employee offered a credible explanation, had a previously clean record, and there were no objective observations of impairment. The judgement underscores that an employer must look beyond the numerical reading to signs of impairment (speech, balance, behaviour), timing of consumption, and context, particularly in cases of inadvertent or prior-consumption off-duty. Thus, while a safety-sensitive environment may allow a zero-tolerance policy, if the procedural and substantive links are missing, eg no impairment or credible explanation given, dismissal may be challenged.
Follow due process: Substantive AND procedural fairness under Schedule 8 of the LRA (Code of Good Practice: Dismissal).
A failed breathalyser test does not automatically justify dismissal. The test must be reliable, the employee must have been fairly treated, and the company’s policy must be consistently applied. A sound process protects both safety and fairness and keeps the company’s decisions standing up at the CCMA.
