Employers often rely on breathalyzer tests to determine whether an employee is under the influence of alcohol while on duty. However, legal precedents make it clear: a positive breathalyzer test alone is not sufficient to justify disciplinary action or dismissal. Courts consistently require additional supporting evidence to prove actual impairment.
Key Legal Precedents
A 2006 case affirmed that while a reliable breathalyzer result can be part of the evidence, it must be supported by credible witness testimony to uphold a dismissal.
A 2012 ruling emphasized that employers must demonstrate actual impairment or the impact on the employee’s ability to perform their duties—not merely rely on a positive test result.
In 2019, the court ruled that a “zero tolerance” policy does not override the requirement to prove intoxication or impairment.
A 2023 judgment cautioned against reliance on breathalyzer results alone due to the potential for false positives. The court stressed the importance of corroborating evidence.
Being under the influence while on duty is a serious issue, but it doesn’t always justify dismissal. In one notable case, an employee was called in early while still off duty. He had consumed alcohol the night before and was sleeping when asked to assist due to staffing issues. Despite being on a final warning and testing positive, the Labour Appeal Court ruled the dismissal unfair. The employee had assisted the employer under unusual circumstances and had been subtly pressured into undergoing testing.
In another recent matter, the Commission for Conciliation, Mediation and Arbitration (CCMA) ruled that the dismissal of a driver who had tested positive after consuming an energy drink containing alcohol was unfair. The employee showed no signs of intoxication, and the Commissioner found the dismissal unjustified. While such a ruling may be reviewable, each case must be evaluated on its specific facts and merits.
Key Takeaways for Employers
To reduce legal exposure and ensure fair handling of intoxication-related cases, employers should:
Justify and consistently apply zero-tolerance policies.
Define clear procedures for alcohol and drug testing within company policies.
Use multiple forms of evidence—such as slurred speech, red eyes, instability, the smell of alcohol, poor coordination, or unusual emotional behavior. Relying solely on a breathalyzer may not be enough.
Ensure both substantive and procedural fairness in the disciplinary process.
Keep workplace policies updated in line with evolving legal standards.
Train managers and supervisors on correct testing procedures and evidence collection.
Breathalyzers remain useful tools, but their use must be supported by thorough documentation. Employers are advised to confirm calibration and correct use of the device, and to record visual observations at the time of testing. Witness statements or video footage (e.g., from a cellphone) can serve as valuable supporting evidence.
What About the Occupational Health and Safety Act?
Regulation 2A of the Act states that if a person appears to have consumed alcohol or drugs, the employer must not allow that person onto the premises. This means that actual intoxication is not the benchmark—the mere appearance of consumption is sufficient grounds to deny entry.
Importantly, the Act does not specify a quantity of alcohol or drugs that must be consumed. It simply states that if a person appears to have consumed, they may not enter or remain on site.
Conclusion
While breathalyzer results can play an important role in workplace safety, they must be used responsibly and within the framework of South African labour law. The courts require more than just a positive test—they require proof of impairment and a fair process.
