THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No. C424/24
In the matter between:
CIPLA DISTRIBUTION GATEWAY (PTY) LTD Applicant
and
MIKE MWALE First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
MILES CHENNELS N.O. Third Respondent
Heard: 27 January 2026
Delivered: 10 February 2026
Review Application – Arbitration Award - Alcohol misconduct – Zero-tolerance policy –
Mechanistic approach incompatible with fairness enquiry - Positive breathalyser test
result – Absence of i mpairment – Reliability of breathalyser test – calibration of device
and confirmatory test - Sanction – Proportionality – Award reasonable – Review
application dismissed
JUDGMENT
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
MAKHURA, J
Introduction
[1] The first respondent (employee) was employed by the applicant (company) as a
warehouse operator from October 2013. His duties included picking, checking,
counting and movement of stock. He was dismissed after a breathalyser test
returned a positive result for alcohol, allegedly in breach of the company’s zero-
tolerance policy.
[2] The employee challenged his dismissal at the Commission for Conciliation,
Mediation and Arbitration (CCMA), cited as the second respondent in these
proceedings. The third respondent, acting as the commissioner, arbitrated the
dispute and found that although the dismissal was procedurally fair, it was
substantively unfair. The commissioner accordingly ordered the company to
reinstate the employee with limited backpay.
[3] The company now seeks to review and set aside the arbitration award and to
substitute it with a finding that the dismissal was substantively fair. The review
application is unopposed. The review application was accompanied by an
application for its late filing. I have decided to grant the condonation application in
the interest of justice.
Material facts
[4] On 26 June 2023, the employee tested positive for alcohol following a
breathalyser test, which recorded a reading of 0.019%. He was subsequently
charged and dismissed on 7 July 2023 for “[t]esting positive for alcohol/drugs or
being in possession of alcohol during working hours or whilst on duty or whilst
working with customers”.
[5] After receiving the positive test result, the employee submitted a written
statement in which he explained that he had consumed a Bioplus energy drink
earlier that morning on his way to work and believed this may have caused the
3
positive reading. It is common cause that, at the time of the dismissal, the
employee was subject to a final written warning for testing positive for alcohol.
Although the documents relating to that warning were not included in the record
before this Court, it is undisputed that on that occasion the employee recorded
an alcohol reading of 0.068% and admitted to having consumed alcohol into the
early hours of the morning. A final written warning, valid for 12 months, was
issued. The company relies on this warning in support of the sanction of
dismissal.
[6] Although the company contended that the employee ought to have requested a
blood test in accordance with its policy, it failed to place the relevant policy before
this Court as part of the record. More generally, the company did not produce the
documentary bundle that had served before the commissioner at arbitration. As a
result, the review application falls to be determined on the basis of the pleadings
and the transcript of the oral evidence. The documents attached to the founding
affidavit comprise the award, the Employee Relations Codes and Procedures
(disciplinary code), the employee’s post-test statement, and the alcohol checklist
completed and signed by both the company representative and the employee.
[7] It was only after the Court specifically enquired about the existence of a zero-
tolerance policy that Mr Mula udzi, who appeared on behalf of the company,
requested an adjournment and thereafter produced the Alcohol and Drug Policy
(zero-tolerance policy). He sought its admission into evidence notwithstanding its
absence from the record. The policy was accepted provisionally, and Mr
Mulaudzi was invited to make submissions regarding its relevance and
admissibility, which he did. Having considered those submi ssions, and mindful of
the importance of a proper ventilation of the issues, I have decided to finally
admit the zero-tolerance policy into evidence in the interests of justice.
The zero-tolerance policy
The zero-tolerance policy
[8] Clause 1 of the company’s zero-tolerance policy records that its objectives are to
prevent the risk of alcohol and drug use contributing to workplace injuries, to
4
safeguard the health and safety of employees, to assist employees suffering from
alcohol or drug dependency, and to ensure compliance with the Occupational
Health and Safety Act 1 (OHSA). To this end, the policy places an obligation on
the company to maintain strict controls relating to alcohol and drug use in the
workplace. It provides that employees who appear to be under the influence of
intoxicating substances are not permitted to enter or remain at the workplace and
prohibits employees from being under the influence of or offering alcohol or drugs
to other employees. It also prohibits employees from possessing or consuming
alcohol or drugs while at work.
[9] Clause 5 confirms that the company adopts a zero- tolerance approach to testing
positive for alcohol and/or drugs. It provides further that:
‘Zero tolerance means testing positive f or alcohol and/or drugs irrespective of
whether the alcohol concentration level is below the legal driving limit or whether
or not the employee is under the influence of alcohol/drugs.
Cipla does not consider whether or not a person is “intoxicated” or “under the
influence” in deciding whether an employee is guilty of misconduct or not.
Attention is focused whether or not the person has consumed alcohol/drugs prior
to or during working hours or and tests positive.
Cipla’s zero tolerance extends to employees reporting to work smelling of alcohol
consumed a night before…’ (Emphasis added)
[10] Employees who test positive are not allowed to carry out their duties and do not
receive any remuneration until they test negative. Those who are sent home
would therefore not be remunerated for the day. Clause 9 deals with the testing
methods and procedures. It provides, inter alia that:
‘Written consent must be obtained from the employee where urine or blood test
need to be obtained. These tests will be performed by a medical practitioner
when necessary.’
1 Act 85 of 1993.
5
[11] In the event the employee “wishes to dispute the findings of an examination
based on physical observation or alcohol/drug test”, he or she may request to be
subjected to medical examination with the taking of biological samples and the
costs of that examination would be that of the company only in the event it is
negative.
[12] Clause 15 provides for support -oriented interventions, including the offering of
counselling to employees who test positive for alcohol or drugs, and the
encouragement of participation in a rehabilitation programme where dependency
is identified. These measures underscore that the policy is not directed solely at
punishment, but also at employee assistance and risk management. At the same
time, however, clause 17 expressly provides that disciplinary action will be
instituted where an employee tests positive for alcohol, drugs, or a related
substance.
The disciplinary code
[13] Clause 2.1.2(l) of the disciplinary code provides that:
‘ALCOHOL
A zero -tolerance approach to alcohol/drugs applies. Testing positive for
alcohol/drugs when reporting for work or during working hours is considered a
serious offence. No employee may have in his possession or consume any
alcohol on the company’s premises or during working hours. Alcohol may only be
consumed on the company premises with the prior permission of the Chief
Executive Director or Executive Director.’
[14] The disciplinary code sets out the list of offences that are regarded as serious
misconduct, which may lead to dismissal for a first offence. One such misconduct
is “[t]esting positive for alcohol/drugs or being in possession of alcohol during
working hours or whilst on duty or whilst working with customers” . However, the
disciplinary code makes it clear that each matter should be determined on its
own merits.
6
Documentary and oral evidence
[15] As part of the company’s procedures, an alcohol checklist is required to be
completed when an employee tests positive for alcohol , recording amongst
others the observations made on the employee. In this instance, the checklist
was completed by Mark van Schalkwyk. It records that the employee smelled of
alcohol and was argumentative. However, the remaining observations reflect that
the employee did not have red or swollen eyes, was not unsteady on his feet, did
not behave erratically, did not display mood sw ings, did not have slurred speech,
and was neither aggressive nor incoherent. His general appearance and attitude
were recorded as not being out of character. Van Schalkwyk did not however
testify at the arbitration.
[16] The introductory portion of the checklist states that it is to be completed where
there is a suspicion that an employee is under the influence of alcohol. It further
records that breathalyser testing is not the sole method of determining whether
an employee is under the influence, and that observational factors are to be
considered.
[17] As already indicated above, f ollowing the positive breathalyser result, the
employee was required to provide a written statement. He recorded that he had
consumed a Bioplus energy drink and had not drunk water and expressed the
belief that this may have caused the positive reading. This explanation formed
the cornerstone of his defence at arbitration, which was that his explanation
amounted to a dispute of the breathalyser result and that, in those
circumstances, the company ought to have advised him of his right to request
confirmatory blood testing.
[18] The material facts and evidence led at arbitration concerning the substance of
the dismissal were largely common cause. It was not disputed that the employee
tested positive for alcohol on the breathalyser, with a recorded reading of
0.019%, that he was not permitted to commence work and was sent home, and
0.019%, that he was not permitted to commence work and was sent home, and
that he was subsequently charged and dismissed on 7 July 2023. The company
7
led the evidence of Nomzamo Hlwele (Hlwele), the Human Resource Business
Partner, and Julian Swartz (Swartz), the Outbound Manager. Neither of these
witnesses were present when the breathalyser test was administered or when
the alcohol checklist was completed and signed.
[19] Hlwele testified that, in terms of the zero- tolerance policy, where an employee
disputes the outcome of a breathalyser test and requests further testing by way
of a biological or blood sample, the company would make that option available
and arrange for the necessary testing. She confirmed that the rule the employee
was found to have breached was simply that he tested positive for alcohol. The
company’s case was that dismissal was warranted because the employee was
on a final written warning for the same or similar misconduct and that the warning
had not expired at the time of the incident. Hlwele further testified that the
employee did not exercise his right to request medical testing after the positive
breathalyser result. When it was put to her that fairness required the company to
advise the employee of this right, particularly in circumstances where his
employment was at risk, she accepted that it would have been fair and “ethical”
for the employee to have been informed but maintained that the company
reasonably expected him to be aware of the option.
[20] Swartz, on the other hand, sought to give evidence to the effect that the
consumption of a Bioplus energy drink could not have resulted in a positive
alcohol reading. He relied on what he described as “extensive case studies”
allegedly conducted by the company, which, according to him, demonstrated that
Bioplus does not remain in the system for longer than ten minutes. He was,
however, not qualified to give expert evidence, and no such studies were
produced or placed before the commissioner. When questioned during cross -
examination as to why employees who dispute breathalyser results are not
examination as to why employees who dispute breathalyser results are not
routinely reminded of their right to request confirmatory testing, Swartz
responded that:
‘Firstly, like I say, I was not present here, I am not even sure and neither can you
be, Sir, that this question was not raised because it is common practice for us to
8
take you through everything and to ultimately give you that choice and
opportunity to go [to] PathCare as well; that is common practice… we cannot
insist that you, you go and, and do blood tests or whatever or … but we will give
you the option to do so and then you will be explained how it is going to work and
what the charges are and who is going to pay for it and all of that because as a
common courtesy, the company picks up the bill unless you are found to be
positive, then the bill comes to you.’ (Emphasis added)
[21] The employee testified that he was employed as a warehouse operator and that
his duties included picking, checking, moving and counting stock. He did not
dispute that the breathalyser test returned a positive result for alcohol. His
explanation, consistent with his written statement, was that on the morning of 26
June 2023, at approximately 08h00, he purchased and consumed a Bioplus
energy drink on his way to work. He explained that his place of work was
approximately 1.5 kilometres from his home and stated that he believed the
consumption of the energy drink may have caused the positive alcohol reading.
[22] The employee, through his representative, had requested the calibration
certificate and was provided with a certificate relating to a single machine.
However, no evidence was led to establish that this certificate related to the
breathalyser device used to test the employee on 26 June 2023, nor that the
device which recorded the positive reading of 0.019% was properly calibrated at
the relevant time.
The arbitration award
[23] The commissioner noted that the company applied a zero- tolerance policy to
second offenders who test positive for and/or are under the influence of alcohol.
The company prohibited any employee from entering the premises if the
breathalyser test result returned positive for any alcohol level.
[24] The commissioner considered the charge and dealt with it in two parts. First , he
[24] The commissioner considered the charge and dealt with it in two parts. First , he
considered whether the employee was under the influence of alcohol. As I have
already indicated above, he found that the employee was not under the influence
9
of alcohol and this finding is not challenged . The commissioner then considered
whether the employee tested positive. The commissioner said that the question
is whether the employee’s dismissal was fair in circumstances where he tested
positive for alcohol and was on a final written warning for a similar misconduct.
The fact that the employee tested positive was not in dispute. The commissioner
found that the company should reasonably have informed the employee of his
right to request blood tests to ensure that a fair procedure is followed, particularly
because it knew that the matter “would end up in a hearing and possibly even in
an unfair dismissal dispute”. The commissioner observed that:
‘The [employee] did not dispute that there were numerous positive readings on
the breathalyser or that the final reading, conducted at 9h20, showed 0.019%,
while he effectively disputed that he drank alcohol, i.e., alcohol ic drinks or liquor,
or that he was under the influence thereof. His defence is that he drank Bioplus,
which impliedly may have caused the positive results, and that there were false
positive results, with the breathal yser testing process and results being called
into question. The [employ ee’s] case implies that Bioplus can result in positive
results (or false positive resul ts, perhaps depending on one’s interpretation
thereof).’
[25] Then, there was an issue with the calibration of the device used to conduct the
test. The commissioner found that from the various tests conducted, it was
unclear from the company’s evidence that the calibration certificate was for the
device used to t est the employee. There was no clear evidence from which
device the reading of 0.019% was taken.
[26] The commissioner rejected the company’s version that the employee was
argumentative but accepted its version that he smelled of alcohol . The
commissioner concluded that:
‘While the evidence prima facie indicates the [employee] had alcohol in his
‘While the evidence prima facie indicates the [employee] had alcohol in his
breath, as Grogan states in Dismissal … “A charge that an employee has alcohol
in his bloodstream that exceeds a certain level must be proved by scientific
means”.
10
While I find on the probabilities that the [employee] tested positive for alcohol , I
must treat the [company’s] evidence on the breathalyser tests and the results
thereof, including the reading, with an appropriate level of circumspection
informed by the above- discussed unanswered questions it leaves us with. The
[company] had due warning of the [employee’s] arguments in his defence and
had the opportunity to present evidence to dispel these areas of dispute. ’
(Emphasis added)
[27] The areas of disputes referred to by the commissioner above relate to the
calibration certificate and whether Bioplus could cause a false positive test result
for alcohol. The commissioner t hen considered whether dismissal was
appropriate. He found that in a case of this nature, the question whether the
employee is guilty of misconduct overlaps with the enquiry into the
appropriateness of the sanction. The commissioner reasoned as follows:
‘While I accept that the [employee] had alcohol on his breath and while he has
not shown the result of the tests were caused by drinking Bioplus, laboratory
testing would have determined more precisely the level of alcohol in his system.
In my view, this is important in this matter considering the questions which
surround the testing and the accuracy of the reading, as discussed above, and
considering there was on the probabilities a departure from what H lwele agrees
was a standard requirement, i.e., that the [employee] be reminded of his ri ght to
request further testing.
As regards the need for further testing, it is important, too, that there was no
indication of impairment, and one cannot ignore that the breathalyser reading
(0.019%) is below the legal limit for driving in South Africa in terms of s 65 of the
National Road Traffic Act 93 of 1998 (0.05%) and below that for professional
drivers (0.02%)…
I accept that the workplace is unquestionably safety critical. However, the
question remains whether dismissal was fair and appropriate and whether there
question remains whether dismissal was fair and appropriate and whether there
were alternatives which the [company] may have implemented. As the Shoprite
case enjoins me to do, I must consider appropriateness and proportionality to the
11
‘offence’ in determining whether the enforcement of the [company’s] policy is
fair.’ (Emphasis added)
[28] The commissioner found that there was no evidence that the employee was
impaired and that the alcohol reading on his breath was notably low. He
observed that the final written warning issued against the employee followed a
reading of 0.068% and that in that case, the employee had consumed alcohol
into the early hours of the morning. The commissioner concluded that:
‘it is contrary to the interests of justice and fairness to dismiss the [employee]
based on breathalyser testing and a reading of 0.019%, the only reading we have
and with certain questions surrounding its accuracy, without any confirmatory test
and absent any evidence of impairment, where it is probable on the evidence that
he was not reminded of his right to further testing. For these reasons, I find that
the applicant’s dismissal is, substantively unfair.’
The grounds for review
[29] The company contends that the commissioner committed gross irregularities ,
misdirected himself and issued an unreasonable decision for various reasons.
First, the company contends that the commissioner should have, following his
finding that it has a zero- tolerance policy for employees testing positive and/or
being under the influence of alcohol, found in its favour that the dismissal was
substantively fair. Second, the company contends that the commissioner found
that the employee was not under the influence of alcohol des pite the employee’s
plea of guilty to the charge.
[30] Third, the company criticised the commissioner’s finding that there was no proof
of impairment in contrast with its evidence that the employee was argumentative.
It argued that impairment was an irrelevant factor because the matter turned on
whether the employee’s dismissal was fair based on a positive result for alcohol
and considering that he was on a final written warning. Fourth, the company
and considering that he was on a final written warning. Fourth, the company
contends that the employee was aware that he could have requested biological
testing and criticised the commissioner for his finding that the company deviated
12
from a standard practice of requiring laboratory testing per H lwele’s evidence.
The company contends that this should not have been determinative in the
commissioner’s finding of unfairness.
[31] Fifth, the commissioner’s consideration of the National Road Traffic Management
Act2 which permits an alcohol reading of 0.05% for driving on the public roads is
criticised as mi sguided because the company ’s policy is zero -tolerance and
because it deals with medical equipment , pharmaceutical products, hazardous
chemicals and hazardous machinery such as forklifts and pallet racking system s
that are more than 10 metres high, which all require extreme caution.
[32] Sixth, the company submitted that the commissioner made contradictory findings
in that while he accepted that the company’s workplace is unquestionably safety
critical, he found that there was no rational link between the zero- tolerance policy
and the need to maintain safety at the workplace. Seventh, the finding that the
employee could have been sent home was criticised on the basis that the
company was obliged to take disciplinary action.
[33] Eighth, the company contends that the commissioner failed to consider that the
employee was a repeat offender who was on a final written warning. Finally, the
company argued that the commissioner committed misconduct by inviting Hlwele
for further cross-examination after she was re-examined. This last ground was ,
however abandoned at the start of the hearing when the Court pointed out to Mr
Mudau that the cross -examination was on a specific point raised during re-
examination, which was not covered before and that the further cross-
examination was after discussion between the parties and the commissioner and
after the company confirmed that it had no objection.
The legal principles: zero-tolerance policy
[34] The present case concerns a positive alcohol test result, not an allegation that
the employee was under the influence of alcohol, and accordingly did not require
the employee was under the influence of alcohol, and accordingly did not require
2 Act 93 of 1996.
13
the commissioner to determine whether the employee’s faculties were impaired
to the extent that he could not properly perform his duties as a warehouse
operator.3
[35] The Labour Appeal Court (LAC) in Shoprite Checkers (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & Others
4 considered the application of the
zero-tolerance policy. The LAC held that the zero- tolerance approach will be
accepted if the circumstances of the case warrant the employer adopting such an
approach.5 The LAC emphasised:
‘[18] But the law does not allow an employer to adopt a zero tolerance
approach for all infractions, regardless of its appropriateness or
proportionality to the offence, and then expect a commissioner to fall in
line with such an approach. The touchstone of the law of dismissal is
fairness and an employer cannot contract out of it or fashion, as it were, a
‘no-go area’ for commissioners . A zero tolerance policy would be
appropriate where, for example, the stock is gold but it would not
necessarily be appropriate where an employee of the same employer
removes a crust of bread otherwise assigned for the refuse bin. See the
incisive contribution by André van Niekerk ‘Dismissal for Misconduct -
Ghosts of Justice, Past, Present and Future’ in R le Roux & A J Rycroft
(eds) Reinventing Labour Law: Reflecting on the First 15 Years of the
Labour Relations Act and Future Challenges (Juta 2012) at 102- 19.
Commissioners should be vigilant and examine the circumstances of
each case to ensure that the constitutional right to fair labour practices,
more particularly to a dismissal that is fair, is afforded to employees…
[22] Even assuming that the appellant was pursuing a zero tolerance policy, it
was not one that is appropriate for an infringement of this rule without
further evidence from appellant for the justification of such an inflexible
policy. In any event, the commissioner is required to consider whether the
policy. In any event, the commissioner is required to consider whether the
circumstances of the case warrant dismissal. If it does not, then
3 cf Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC).
4 (2015) 36 ILJ 2273 (LAC).
5 Ibid at para 17.
14
irrespective of the company’s policy, the commissioner is at large to set
the dismissal aside and replace it with an appropriate sanction.’
(Emphasis added)
[36] In Imperial Dedicated Contracts ( Pty) Ltd operating as Imperial Dedicated
Contracts v Mpshe and O thers6 (Mpshe), this Court found that it cannot be an
offence to consume alcohol because alcohol could be found in various
substances, including medicine. The Court continued that:
‘On a daily basis, through medication, employees consume alcohol at the
workplace. The issue is intoxication or being under the influence as was aptly put
by the LAC in Tanker Services (Pty) Ltd v Magudulela 7. The LAC confirmed that
in all probabilities it must be shown that the person’s faculties are impaired to the
extent that he or she could no longer perform the skills technically complex and
highly responsible task.’
8
[37] In Samancor Chrome Ltd (Western Chrie Mines) v Willemse & others 9, this Court
dealt with a matter where the employee was dismissed for breaching the zero-
tolerance policy because he tested positive on two breathalyser devices. The
employee disputed that he consumed alcohol and went for a laboratory blood
test, which detected no alcohol in his bloodstream . He called an expert witness
who testified that the laboratory testing could not detect alcohol levels below
0.010g/dl and that breathalyser test s are less reliable compared to laboratory
blood tests and are prone to producing false positive test results.
[38] This Court, on review after the commissioner found the dismissal to be
substantively unfair, accepted the evidence by an expert witness that the
breathalyser tests were capable and prone of producing false positive results.
The Court held that:
6 [2021] ZALCJHB 198.
7 [1997] 12 BLLR 1552 (LAC).
8 Mpshe, at para 10.
9 [2023] ZALCJHB 150; (2023) 44 ILJ 2013 (LC).
15
‘The applicant bore the onus of establishing that there was alcohol in the
employee’s blood stream. The employee himself did not contend that Broodryk’s
evidence definitively established that there was no alcohol in his bloodstream,
but, by the same token, that evidence did not serve to prove that there was any
alcohol in the employee’s bloodstream. This evidence, coupled with the evidence
by Broodryk that the sample provided by the employee produced a negative
result, for any medical purposes, and that breathalyser tests were capable of
producing false positive results in specified circumstances, supports the
arbitrator’s assessment of the probabilities and also his finding. To the extent that
the applicant now seeks to contend that it was improbable that the two
breathalyser devices would give three false breathalyser results on the same
date, there is no evidence that was presented by the applicant to show how
many other employees were tested on that day, and how many positive or
negative results were generated. The evidence that breathalyser tests were
prone to give false positive results was corroborated by Koekemoer, who
confirmed that breathalyser tests were less reliable than blood tests and
substantiated the evidence that a false positive test might be generated under
certain conditions. Specifically, there was no evidential basis to reject the
evidence of Broodryk who stated that “in my honest opinion, I think that the
breathalyser was false positive”.’
10
[39] The most recent decision on the zero-tolerance policy from the LAC is E never v
Barloworld Equipment, A Division of Barloworld SA (Pty) Ltd 11. The LAC
embarked extensively on an assessment of its previous judgments and the
judgment of this Court on this topic. It held that:
‘[40] In National Union of Metalworkers of SA on behalf of Cloete v Trentyre
(Pty) Ltd & others , Zondo JP (as he then was) said the following of zero -
tolerance policies:
tolerance policies:
‘In this regard it needs to be pointed out that it is not our law that the
mere fact that an employee is found to be under the influence of liquor in
10 Ibid at para 17.
11 [2024] ZALAC 12; (2024) 45 ILJ 1554 (LAC).
16
the workplace on a particular day means that the only appropriate
sanction in every case is dismissal.’
While I accept that the respondent requested a final written warning from
the chairperson of the disciplinary enquiry, the effect of their policy is that
their employees have to pick between cannabis or their jobs because the
appellant would continuously test positive.
[41] In Transnet Freight Rail v Transnet Bargaining Council & others , the
dismissal of a yard official, who marshalled and coupled trains was found
to be fair after he tested positive for alcohol. Of importance in that case is
that safety was a critical consideration and the employee was already on
a written warning. In Taxi-Trucks Parcel Express (Pty) Ltd v National
Bargaining Council for the Road Freight Industry & others , it was found in
favour of the employee that dismissal was harsh and unfair. In this case,
the employee was a general worker who was loading tyres onto tr ucks.
After being suspected of being intoxicated, a blood test confirmed the
presence of alcohol in his blood. In Tosca Labs v Commission for
Conciliation, Mediation & Arbitration & others , the Labour Court upheld a
decision by the CCMA which found the dismissal of a concrete technician
for testing positive for alcohol to be unfair. The employee in question was
breathalysed after an altercation with a member of the public, and the test
came back positive even though there was no evidence of intoxication.
The CCMA and Labour Court upheld the unfairness of the decision to
dismiss solely based on a breathalyser test.
[42] Underpinning these decisions is the principle that intoxication is a matter
of degree , which this court explained in Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration & others…
[43] This matter could well have been different for an employee who was
found to be ‘stoned’, intoxicated or impaired during work hours on the
premises or if it was an employee who operates or works with heavy and
premises or if it was an employee who operates or works with heavy and
dangerous machinery. Indeed in Marasi v Petroleum, Oil & Gas
Corporation of SA (SOC) Ltd , the Labour Court dismissed an unfair
discrimination claim against an employee working as a rock drill operator
17
at a petro- chemical plant who tested positive for cannabis that he had
smoked outside the workplace. While in SGB Cape Octorex (Pty) Ltd v
Metal & Engineering Industries Bargaining Council & others , this court
upheld the dismissal of an employee who was smoking cannabis while on
duty.
[44] Although no medical evidence was led, the respondent conceded that,
unlike alcohol, cannabis stays in the blood system for longer than is the
case with alcohol. This underscores the point that a mere positive test for
cannabis does not address the sobriety of the user or indicate whether
they are impaired from carrying out their duties . A further consideration,
as pointed out above, is that the appellant does not operate or work with
any heavy or dangerous machinery. Her job is plainly an office desk job. I
do not accept that because the respondent has a generally dangerous
workplace the rule is justified or that that is an inherent requirement of the
job.’
12 (Emphasis added)
[40] In this Court, one of the recent decisions is the judgment of Chill Beverages
International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others 13 where the employee, a forklift driver , was dismissed after the
breathalyser test returned positive results for alcohol. The employee did not
dispute the result but stated that he used a cough mixture, which could have
contained alcohol. The commissioner found the dismissal to be substantively
unfair. The Court dismissed the review application and found that any zero-
tolerance policy would be accepted if the implementation necessitated the same
and that the onus is on the employer to show that the dismissal was appropriate
and proportional to the transgression.
Evaluation
[41] The commissioner found that there was no evidence establishing that the
employee’s faculties were impaired and consequently concluded that he was not
12 Ibid at paras 40 – 44.
13 [2025] ZALCJHB 298; [2025] 11 BLLR 1203 (LC).
18
under the influence of alcohol. That finding was not challenged on review.
Indeed, counsel for the company , Mr Mulaudzi, correctly conceded that there
was no evidence that the employee was intoxicated or that his ability to perform
his duties was compromised. There was similarly no evidence that, by reason of
the alcohol detected in his breath, the employee was unable to execute his
functions as a warehouse operator or posed an operational risk at the workplace.
[42] The employee only accepted that the breathalyser test returned a positive
reading of alcohol. That the employee may have been argumentative, which the
commissioner rejected in any event, does not proof that he was under the
influence of alcohol or that his faculties were impaired, as the company seeks to
suggest.
[43] The company’s principal contention, properly construed, is that, once it was
established that the employee tested positive for alcohol, the commissioner was
bound to apply the zero -tolerance policy and uphold the dismissal, particularly
given that the employee was on a final written warning for similar misconduct. On
this basis, once again, on a proper construction of its papers and the
submissions by Mr Mulaudzi, the other factors , such as the impairment,
proportionality, or workplace context , were irrelevant. In my view, t his argument
misconceives the nature of the commissioner’s enquiry. Such a mechanistic
approach, as suggested by the company, is incompatible with a proper enquiry
into the fairness of the dismissal , and must be rejected. The commissioner was,
as he has done, required to consider the totality of the evidence and the
circumstances of the alleged misconduct.
[44] The company bore the onus of proving that the employee’s dismissal was
substantively fair. The commissioner properly considered various relevant and
material factors, including the low alcohol reading, the absence of impairment,
the known fallibility of breathalyser testing and the absence of confirmatory
the known fallibility of breathalyser testing and the absence of confirmatory
result, and the company’s own evidence that it was common practice to inform
19
employees of the option of confirmatory testing, an option that was not afforded
to the employee in this instance.
[45] To place the burden on an employee to disprove the accuracy of a breathalyser
result by requesting further testing, which is what the company’s policy suggests,
though contradicted by its witnesses’ oral evidence , particularly of Swartz, who
said that the practice was to advice the employee, is effectively to reverse the
onus of proof in dismissal disputes.
[46] Fairness requires more, especially where the employer , as in this case, accepts
that the employee exhibited no signs of intoxication or impairment and where the
alcohol reading was notably low , and the employee’s explanation was known to
the company from the outset. It requires that the employer establish, on reliable
evidence, both the misconduct relied upon and that dismissal wa s an appropriate
and proportionate response to the alleged transgression, particularly because
dismissal in this case was a reasonably foreseeable outcom e. The company’s
failure to produce reliable evidence in the form of laboratory tests was indeed a
material and relevant consideration in the commissioner’s assessment of the
fairness of the dismissal, but not the determinative factor.
[47] The company further criticised the commissioner for having regard to the
permissible alcohol limits in terms of the National Road Traffic Act, contending
that such considerations were irrelevant in the face of a zero-tolerance policy and
the allegedly hazardous nature of the workplace. This criticism is misplaced.
First, the commissioner did not equate the statutory driving limits with the
employer’s policy, nor did he substitute one for the other. Rather, the reference
served as a contextual indicator in assessing proportionality, particularly in
circumstances where the alcohol reading was low, there was no evidence of
impairment, and the company relied exclusively on a breathalyser result without
impairment, and the company relied exclusively on a breathalyser result without
confirmatory testing. Second, the evidentiary foundation for the company’s
reliance on a safety -critical work environment was tenuous. No meaningful
evidence was presented regarding the specific nature of the employee’s duties,
20
the degree of risk associated with those duties, or how the employee, in an
unimpaired state, posed a threat to health and safety , per the zero- tolerance
policy. The limited evidence elicited from Swartz emerged only in response to
questions from the commissioner and was directed primarily at the risks posed
by intoxicated or impaired employees. That evidence did not advance the
company’s case, as the company failed to prove that the employee was under
the influence of alcohol and/or that his faculties were impaired.
[48] The company’s reliance on the existence of a final written warning similarly does
not advance its case. While progressive discipline and prior warnings are
relevant considerations, they do not displace the commissioner’s obligation to
assess whether dismissal is fair in all the circumstances . A final written warning
is not a license for the automatic or mechanical imposition of dismissal. The
commissioner correctly appreciated that he was required to weigh the
employee’s disciplinary record together with the nature of the misconduct proved,
the reliability of the evidence, the degree of risk posed, and the proportionality of
the sanction imposed. Having done so, he found the dismissal to be
inappropriate and disproportionate in the circumstances.
[49] The company’s primary contention that testing positive per se constitutes serious
misconduct, regardless of the degree or context, illustrates the difficulty with a
mechanical application of the zero- tolerance policy. Properly construed, and
having regard specifically to the provisions referenced above, the company’s
zero-tolerance policy is directed at preventing safety risks arising from alcohol or
drug impairment in the workplace. Absent evidence that the employee’s conduct
undermined that objective, the policy cannot be applied in a manner divorced
from its purpose or from the factual matrix of the case.
[50] Finally, there was no evidence or credible evidence presented that identified the
[50] Finally, there was no evidence or credible evidence presented that identified the
specific device used to test the employee or that established that the device had
been properly calibrated. In the absence of such proof, and without confirmatory
21
testing, the commissioner was entitled to approach the breathalyser result with
caution, as he has done.
[51] Viewed holistically, the commissioner’s approach reflects a proper appreciation
of the enquiry into the fairness of the dismissal. He assessed the company’s
zero-tolerance policy, as he was required to, against the factual matrix before
him and the overarching requirement of fairness. In circumstances where the
employer failed to establish impairment, failed to lead reliable evidence
confirming the breathalyser result, and failed to demonstrate that dismissal was a
proportionate response to the misconduct proved, the conclusion that the
dismissal was substantively unfair in my view falls well within the bounds of
reasonableness.
Conclusion
[52] Applying the review test 14, it cannot be said that the decision reached by the
commissioner is one that a reasonable decision- maker could not reach. The
commissioner correctly identified the nature of the enquiry, engaged with the
evidence placed before him, applied the relevant legal principles, and reached a
conclusion that is rationally connected to the material before him. Whether this
Court might have reached a different conclusion is immaterial. 15 The award falls
within the band of decisions to which a reasonable commissioner could come,
and it therefore withstands scrutiny on review. Accordingly, the review application
falls to be dismissed.
[53] In the premises, the following order is made:
Order
1. The late delivery of the review application is condoned.
14 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo) [2007] ZACC 22; ( 2007)
28 ILJ 2405 (CC) at para 110 ; Fidelity Cash Management Service v Commission for Conciliation,
Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC) at para 100.
15 Duncanmec (Pty) Ltd v Gaylard NO and others (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC) at
paras 42 - 43.
22
2. The review application is dismissed.
____________________
M. Makhura
Judge of the Labour Court of South Africa
23
Appearances:
For the Applicant: Mr O. Mulaudzi
Instructed by: Senyema Gwangwa Inc