Dealing with Alcohol in the Workplace: Managing Breathalyser Failures Lawfully and Fairly
Alcohol use in the workplace remains one of the most frequent sources of disciplinary disputes. Mismanagement of incidents and disciplinary action, where an employee reports for duty under the influence or tests positive for alcohol and/or other substances, can expose an employer to reinstatement orders, even when genuine safety concerns exist. It’s therefore essential that employers manage these cases lawfully, fairly, and consistently, particularly when dealing with breathalyser failures in the workplace.
Confirm the test
Before taking any action, ensure the breathalyser process is accurate and credible:
- The breathalyser must be properly calibrated and administered.
- The test should be conducted by a competent person, and the result recorded immediately.
- Always conduct a second test a few minutes later to verify the initial result.
This confirms reliability and protects both employer and employee from errors.
Assess the evidence holistically
A breathalyser reading should never stand alone. Employers must evaluate the full context:
- Record visible signs of intoxication, such as speech, balance, odour, or behaviour.
- Have the tester or supervisor sign a written statement detailing these observations.
- Give the employee a fair opportunity to explain the result. For instance, recent medication, mouthwash use, or alcohol consumed the previous evening.
- Always note the time of the test and the employee’s shift start time for context.
This balanced assessment ensures fairness and supports defensible decisions later.
Apply company policy consistently
Consistency is crucial. Employers must apply their alcohol and substance policy uniformly across all cases. If an employee claims an alcohol dependency problem, immediately notify HR and activate the company’s support mechanisms. Offer assistance in line with policy, such as counselling or rehabilitation, and document all help provided.
Patterns of absenteeism can also indicate dependency and should be recorded.
In NUM obo Maruapula / Eskom Rotek Industries SOC (Pty) Ltd [2025] 10 BALR 1122 (CCMA), the CCMA upheld the dismissal of an employee who, despite claiming alcoholism, repeatedly failed to attend rehabilitation. The Commissioner confirmed that employers are not obliged to tolerate ongoing misconduct under the guise of incapacity when an employee refuses assistance.
Conversely, in Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594 (LC), the Labour Court held that without proof of dependency, an employee’s intoxication constitutes misconduct, not incapacity. Where an employee consciously consumes alcohol before work, dismissal for misconduct may be justified.
A positive breathalyser doesn’t equal automatic dismissal
A zero-tolerance policy does not remove the employer’s duty to ensure fairness. Recent Labour Court judgments reinforce that a positive alcohol reading alone is not conclusive proof of impairment or grounds for dismissal.
In Chill Beverages International (Pty) Ltd v CCMA & Others (C160/2024) [2025] ZALCJHB 298 (14 July 2025), the Court found dismissal unfair where the employee, though testing positive, offered a credible explanation (medication containing alcohol), showed no signs of intoxication, and had a clean disciplinary record.
Similarly, in Msitshana v CCMA & Others (JR 271/2023) [2025] ZALCJHB 424 (9 September 2025), the Court held that a positive test does not automatically justify dismissal, particularly where there are no observable signs of impairment and the employee’s explanation is plausible.
These cases underscore that employers must consider:
- Evidence of actual impairment (speech, balance, behaviour)
- Timing and context of consumption
- The employee’s past record and credibility of explanation
Even in safety-sensitive environments, a zero-tolerance stance must still comply with principles of substantive and procedural fairness. Without this, dismissals are vulnerable to CCMA challenges.
Follow due process
All disciplinary action must comply with Schedule 8 of the Labour Relations Act (LRA): Code of Good Practice – Dismissal. This means both substantive fairness (valid reason) and procedural fairness (fair process) must be established before any sanction, including dismissal, is imposed.
Conclusion
A failed breathalyser test does not automatically justify dismissal. Employers must ensure the test is reliable, the employee is treated fairly, and company policies are applied consistently. A transparent and well-documented process not only protects workplace safety but also ensures that disciplinary outcomes stand up to scrutiny at the CCMA.
By balancing fairness with responsibility, employers can uphold both legal compliance and workplace integrity.
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