Introduction

This article considers the Labour Court of South Africa judgment in CIPLA v Mwale & Others (C424/24) [2026] ZALCCT 22 (“Mwale”). The case addresses the fairness of dismissals arising from the enforcement of zero-tolerance alcohol policies, with particular focus on the evidentiary burden placed on employers. It highlights a critical issue: whether a positive breathalyser test, on its own, is sufficient to justify dismissal. This article also relates to a previous article on the topic, the truth about alcohol testing in the workplace, and continues to observe the Court’s key findings and implications for employers.

The Facts

The employer, CIPLA, sought to review a CCMA award issued by the Commissioner, who had found the dismissal of Mr Mike Mwale substantively unfair. The dismissal followed a positive breathalyser test reading of 0.019%, in breach of a zero-tolerance policy. The policy treated any detectable presence of alcohol as misconduct warranting dismissal, regardless of impairment.

Mr Mwale disputed the result, suggesting it may have been caused by consuming an energy drink earlier that morning. The employer rejected this explanation and relied solely on the breathalyser result in proceeding with dismissal.

The Labour Court upheld the CCMA’s decision, finding that reliance on the breathalyser result alone, particularly in the absence of observable impairment, was insufficient. The employee was reinstated with limited back pay.

Legal Framework

South African labour law requires that dismissal must be both substantively and procedurally fair. In misconduct cases involving alcohol, this requires more than proving the presence of alcohol in an employee’s system.

Employers must establish the factors of substantive fairness:

  1. That a workplace rule exists and is valid.
  2. The importance of the workplace rule.
  3. That the employee breached the rule.
  4. The (potential) damage or harm caused by the breach.
  5. That the workplace rule is known, or the employee should reasonably be aware of it.
  6. That the workplace rule is applied consistently.
  7. That the breach justifies dismissal, and that it’s an appropriate and proportionate sanction.

Where impairment is not evident, the evidentiary burden becomes even more stringent.

Case Law

In Mwale, the Labour Court emphasised that zero-tolerance policies cannot be applied mechanically.

The Court held:

  • A breathalyser reading alone is insufficient where no visible impairment exists.
  • Employers should obtain confirmatory medical testing where dismissal is anticipated.
  • The presence of alcohol must be linked to impairment, particularly in safety-sensitive roles.
  • Dismissal must be proportionate to the circumstances.

The judgment reflects a broader judicial trend: moving away from rigid policy enforcement toward a contextual, evidence-based approach.

Application to Employers

This judgment has important implications for employers enforcing alcohol-related policies:

  1. First, reliance on zero-tolerance policies alone is no longer sufficient.
  2. Second, employers must be able to demonstrate not just the presence of alcohol, but its impact on the employee’s ability to perform their duties safely.
  3. Third, evidentiary gaps, such as failing to obtain confirmatory testing, can undermine an otherwise legitimate case.
  4. Finally, fairness requires a contextual assessment, including the nature of the employee’s role, the level of risk, and whether impairment was present.

Practical Steps for Employers

  • Do not rely solely on breathalyser results
    • A positive test must be supported by additional evidence, especially where impairment is not visible.
  • Obtain confirmatory medical testing
    • Where results are disputed or dismissal is likely, medical verification is critical.
  • Ensure equipment reliability
    • Breathalysers must be properly calibrated and supported by valid certification.
  • Assess impairment, not just presence
    • Determine whether the employee was actually unable to perform duties safely.
  • Apply policies contextually
    • Zero-tolerance policies must be justified by operational and safety requirements.
  • Inform employees of their rights
    • Allow employees the opportunity to challenge results and request further testing.

Key Takeaways / Conclusion

The Mwale judgment marks a clear shift in how alcohol-related misconduct should be approached. Employers must move beyond a mechanistic reliance on positive test results and adopt a more rigorous, evidence-based approach. It is no longer enough to show that alcohol was present, as employers must prove that the employee was impaired or posed a real safety risk.

At the end of the day, workplace safety remains critical, but fairness, proportionality, and proper evidence remain the foundation of any defensible dismissal.

Article By Joel Setseta

Legal Assistant at Consolidated Employers Organisation (CEO SA)