Being under the influence of alcohol at the workplace
Being under the influence of alcohol at the workplace
Discussion:
No employer is compelled to tolerate employees being under the influence of alcohol at work. Most employers have adopted a “zero tolerance” approach and breath-alcohol (‘breathalyser’) tests are widely used as a tool to determine intoxication.
Employers have created lengthy policies and guidelines on intoxication and breathalyser testing. The CCMA has also introduced certain guidelines during February 2024, and a breath analyser is described as “any SABS approved electronic device, capable of reading the presence of alcohol concentration in a person’s breath and used as a screening tool at any CCMA premises to detect the presence of alcohol in the identified person’s breath”.
A breathalyser test is a helpful tool, but its evidentiary value is questionable. Employers must therefore also present corroborative evidence at any disciplinary hearing. The courts have held in many cases that a mere breathalyser test, without corroborating evidence (e.g. blood test, or physical observation), is insufficient to prove that an employee is under the influence of alcohol.
In a previous blog, the matter of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 was dealt with, and it was mentioned that breathalyser tests results can be unreliable for proving blood alcohol content.
An interesting case that was reported after the Samancor decision, is SA Breweries (Pty) Ltd v CCMA & Others (2025) 46 ILJ 184 (LC) where an employee, an Account Manager, was involved in a serious vehicle collision whilst driving a company vehicle. The employer accepted the employee’s denial of intoxication but some 22 months later the SAPS report showed excessive blood alcohol levels. The employee was subsequently charged and dismissed. The dismissal dispute was referred to the CCMA where a commissioner held that the dismissal was unfair as dismissal was not an appropriate sanction as the employee was permitted to work for 22 months after the incident.
At the Labour Court it was held that the commissioner’s primary basis for his finding was that the investigation was initially withdrawn and that he was only dismissed some 22 months later. The commissioner also found that the employer was aware of all of the other elements of the offence save for the level of intoxication but was perfectly comfortable with continuing with the employment relationship.
The employer argued that the commissioner failed to take into account that they merely withdrew the matter due to the lack of evidence surrounding the intoxication level. It was however submitted that the conduct was never condoned. It also argued that the employee, who was a senior employee, was in fact dishonest when he deposed to a written statement, denying his intoxication.
The LC agreed with the employer’s sentiment on dishonesty and found that the employee actually benefitted from the additional 22 months of employment. If the employee was honest, he was likely to be dismissed much earlier and it appeared that the commissioner awarded the employee for being dishonest. The court was of opinion that this was clearly not reasonable.
The LC also accepted that there was no remorse shown and the employer relied on the employee’s bona fides when the incident occurred. It was also held that the seriousness of the offence was not properly considered as well as the fact that the employee had a disregard for the life and safety of others.
The LC found that, in the circumstances, the commissioner’s decision on sanction was unreasonable and warranted interference by the court. The LC held that the award was to be set aside and replaced by a finding that the dismissal was fair.
Key learnings:
– Commissioners should note that a lengthy delay of instituting disciplinary action should not give an automatic claim for unfairness. The surrounding circumstances should be considered, and dishonesty plays a major role.
– Dishonesty in making statements will undoubtedly lead to dismissals.
– Driving a company vehicle whilst intoxicated is a serious offence.
