Employers in South Africa encounter a significant uphill battle when it comes to alcohol related offences in the workplace. From being required to prove breathalyser calibration information and stringent testing methods to observation reports. Employers face further difficulty as they are not allowed to openly and blatantly ask their employees if they have an alcohol problem, out of fear of possible discrimination disputes.
What is important to note is that South African labour legislation differentiates between misconduct, testing positive for alcohol in the workplace, and alcohol addiction. Legislation further dictates that different approaches, procedures, and processes must be followed in each instance.
In National Union of Metalworkers of South Africa obo Masinga Toyota Boshoku South Africa (2025) 1 BALR 1, an employee who was a team leader was dismissed after testing positive for alcohol on two separate tests run on successive days. The employee denied any alcohol in his system and tried to rely on laboratory reports which showed a negative for alcohol testing. The problem with the test results was that they were conducted 4 hours after the breathalyser test was done, which initially tested positive. Ultimately, the employee admitted to having alcohol in his system but claimed that he suffered from alcohol addiction and as a result, argued that the sanction of dismissal was too harsh in the circumstances. The employer produced evidence of the positive breathalyser test which was sufficient to prove his guilt. The employee, ultimately failed to provide any evidence of his alcohol addiction or that he had brought it to his employer’s attention prior to being caught. As a result, his dismissal was deemed to be procedurally and substantively fair.
Employers should encourage employees to disclose any alcohol or substance abuse issues. Suppose an employee can prove their alcohol addiction with credible medical evidence. In that case, an employer may be obligated to consider rehabilitation information and assistance or incapacity efforts before contemplating dismissal notwithstanding the fact that employers are not in the business of rehabilitating alcoholics or drug addicts.
The primary goal is to ensure a safe working environment in the workplace. The Code of Good Practice on Dismissal merely states that employers should consider the disclosure of addiction and consider which approach should be followed. Either incapacity or misconduct dismissals in the event that an employee tests positive for alcohol.
In Transnet Freight Rail v Transnet Bargaining Council & others (2011) 20 LC an employee was dismissed for arriving at work under the influence of alcohol. Being under the influence of alcohol in the workplace constituted a serious offence in terms of Transnet’s disciplinary code especially considering the fact that the employee was on an existing final written warning for the same offence. SATAWU disputed the employee’s dismissal as being both procedurally and substantively unfair as the employee had not been offered any rehabilitation regarding Transnet’s Employee Assistance Program. The Commissioner held that the chairman of the disciplinary enquiry could have suggested counselling as a form of action to address the employee’s misconduct. The employee was awarded reinstatement, 1 month compensation, and to surrender to the employer’s substance abuse rehabilitation program.
On review, Transnet argued that the Commissioner failed to distinguish between misconduct and incapacity. It was further argued that the employee was not an alcoholic and did not suffer from alcoholism. The Commissioner exceeded his powers by ordering the employee to submit to rehabilitation. It was held that alcoholism is cited as a form of incapacity and recommends that counselling and rehabilitation may be a suitable measure to assist an employee. If an employee suffers from alcoholism, an employer is obliged to counsel and assist. Should the employee not declare or prove any addiction, there is no obligation on the employer to assist.
In the above case, Judge Steenkamp held that the Commissioner’s decision to reinstate, compensate, and order rehabilitation was one no reasonable decision-maker would make. As a result, the award was set aside.
Employers should clearly indicate the procedures and requirements for alcohol and substance abuse in the workplace. Employers must make clear that alcohol use is misconduct, and alcoholism, or substance addiction will be dealt with in an incapacity process on condition that it is disclosed prior to and can be proved by supporting medical evidence.
Article By Tammy Barnard
Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)