The Labour Court has reaffirmed that an employer’s zero-tolerance alcohol policy cannot be applied mechanically, holding that fairness must always remain the deciding factor when considering dismissal.
In CIPLA Distribution Gateway (Pty) Ltd v Mike Mwale and Others (Case No. C424/24) [2026] ZALCCT 10 February 2026, the Court dismissed an employer’s review application and upheld a CCMA award reinstating an employee who had been dismissed after testing positive for alcohol on a breathalyser.
The employee had worked as a warehouse operator for Cipla Distribution Gateway since 2013. In June 2023, he recorded a breathalyser reading of 0.019% before starting work. Although the company had a strict zero-tolerance policy prohibiting employees from testing positive for alcohol, there was no evidence that the employee was impaired or unable to perform his duties.
The employee explained that he had consumed a Bioplus energy drink on his way to work and believed it may have contributed to the positive reading. He was nevertheless dismissed, particularly because he was already on a final written warning for a previous alcohol-related incident.
The CCMA found that while the dismissal was procedurally fair, it was substantively unfair and ordered the employee’s reinstatement with limited backpay. Cipla approached the Labour Court to review and overturn that decision.
The employee confirmed that employers are entitled to implement zero-tolerance alcohol policies, particularly in safety-sensitive workplaces. However, the Court stressed that such policies do not remove the legal requirement to assess whether dismissal is fair in the circumstances of each individual case.
The Court found several shortcomings in the employer’s case. Although the breathalyser returned a positive result, there was no evidence that the employee displayed any signs of intoxication or impairment. The employer also failed to prove that the breathalyser used had been properly calibrated or that the calibration certificate related to the device used during the test.
Importantly, the employer’s own witnesses acknowledged that employees who dispute a breathalyser result are ordinarily informed of their right to request confirmatory blood testing. In this case, however, there was no evidence that the employee had been advised of this option.
The Court held that the Commissioner was entitled to consider the low alcohol reading, the absence of impairment, the lack of confirmatory testing and the uncertainty surrounding the breathalyser evidence when deciding whether dismissal was an appropriate sanction.
The Court rejected Cipla’s argument that a positive alcohol test automatically justified dismissal under its zero-tolerance policy. It held that such a mechanistic approach is inconsistent with the Labour Relations Act, which requires commissioners to assess fairness, proportionality and the circumstances of every case.
Finding that the CCMA Commissioner had properly applied these principles, the Labour Court dismissed the review application and allowed the reinstatement award to stand.
In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
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