In South Africa, the use of alcohol and the right to a safe working environment are regulated in terms of the Occupational Health and Safety Act 85 of 1993 (OHSA). This Act places a significant duty on employers to maintain a safe and healthy working environment, which prohibits employees from being under the influence of alcohol or drugs while performing their duties in the workplace. Employers must be reminded that a positive breathalyser/alcohol test simply shows that alcohol is present, which does not necessarily prove that an employee is impaired, intoxicated or under the influence.
In Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150, the Court had to evaluate the validity of breathalyser tests and further had to consider whether breathalyser test results can be deemed inaccurate for proving blood alcohol content. In this case, an employee blew positive in three separate breathalyser tests. The employee, unsatisfied with the breathalyser test results, elected to have blood drawn, which resulted in a negative blood alcohol result. In this case, it was highlighted that breathalyser tests are screening tools, and should not be deemed to be precise scientific instruments capable of conclusively proving intoxication or blood alcohol levels. External factors, including calibration, time of testing, recent use of mouthwash, medication, or even some food items, can affect results, resulting in ‘fake positives’ for alcohol. As a result, the court confirmed that testing positive on a breathalyser does not necessarily mean the employee was under the influence or intoxicated in the legal sense. In this case, the court upheld the CCMA’s finding that the dismissal of the employee was both procedurally and substantively unfair, considering the fact that the employer relied solely on the breathalyser test result, without any further corroborating evidence of intoxication or being under the influence of alcohol.
In light of the above, the hard truth is that employers have an additional duty to go further when charging an employee for being under the influence of alcohol. Employers must prove the impairment of an employee, particularly relating to the effects of alcohol. Additionally, employers must note and keep a record of supplementary factors, which should include slurred speech, shaky and erratic movement, and the smell of alcohol, as influential indicators of being “under the influence.” These supplementary factors will be essential evidence that will be required to be led during disciplinary hearings and CCMA proceedings in order to prove that the employee was under the influence of alcohol.
In Mdletshe v Colossal Aviapartner Aviation Services (Pty) Ltd [2025] 10 BALR 1100 CCMA, the Arbitrator had to determine the fairness of a dismissal of an aircraft cleaner who was summarily dismissed after being charged with being under the influence of alcohol. In this case, it was highlighted that there is a difference between testing positive for alcohol and being under the influence. A breathalyser test result is insufficient to prove that an employee’s faculties are impaired. No further evidence or observation reports were conducted in this case. As a result, it was held that the employer had failed to prove that the employee was under the influence of alcohol. As a result of the Commissioner’s findings, the employee was awarded 6 months’ compensation for an unfair dismissal.
Lastly, employers must remember that there are differences in terms of alcohol-related disciplinary charges, and the requirements to prove them also differ. Employers should consider the employee’s conduct, the disciplinary code requirements, and formulate the charge accordingly. Should an employee be suspected of being under the influence of alcohol or intoxicated in the workplace, a breathalyser and additional factors must be recorded. This is not the same as ‘testing positive for alcohol’, which is simply a test result without external factors speaking to an employee’s behaviour.
Tips:
- Document Observable Behaviour:
Always record physical and behavioural signs of impairment, such as slurred speech, unsteady movements, or the smell of alcohol, in addition to breathalyser results. These observations form crucial corroborative evidence in disciplinary and arbitration proceedings.
- Differentiate the Charge:
Distinguish between “testing positive for alcohol” and “being under the influence.” The former indicates alcohol presence; the latter requires proof of impairment. Ensure disciplinary charges and evidence align with the correct standard to avoid procedural and substantive unfairness.
Article by Tammy Barnard
Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)