Employers, particularly in high-risk industries such as manufacturing and mining, implement stringent policies and procedures in support of the onerous health and responsibilities placed on employers under the occupational health and safety laws (the Occupational Health and Safety Act and the Mine Health and Safety Act) including policies and procedures in relation to “zero tolerance” of alcohol or other intoxicating substances. Typically, these policies and procedures provide for dismissal even on a first offence, based on the classification of the offence as a serious offence because of the potential significant consequences of non – compliance (injuries and death).
We have addressed the interpretation and application of these “zero tolerance” policies in previous articles which can be found here, here, and here.
The Labour Court was again required, recently, to consider the interpretation and application of a “zero tolerance” workplace policy in the matter of Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others (C160/2025) [2025] ZALC JHB 298 (14 July 2025) (Chill Beverages Judgment).
Chill Beverages manufactures and distributes various beverages. The employee was appointed as a forklift (machinery) driver and his duties included transporting raw materials (including heavy bags of sugar and containers containing up to 1000 litres of liquid ingredients) with a forklift.
The employee was dismissed for alleged gross misconduct after failing a breathalyser test on 20 May 2023.
During the arbitration proceedings, it was undisputed that Chill Beverages had an Alcohol, Drug and Substance Abuse Policy (Policy) in place, and that the employee had been made aware of the Policy. The Policy prohibits employees from having any intoxicating substances in their bloodstream during working hours, and they are forbidden from using any alcohol during work or within six hours before the start of their shift. The Policy included a “zero tolerance” clause and that certain levels of alcohol would automatically lead to a disciplinary hearing and possible dismissal.
On 20 May 2023, the employee was subjected to a breathalyser test when entering the factory. The employee tested positive for alcohol and had to undergo the test several times. Chill Beverages also used different devices to ensure that the initial device was not faulty (an important element). The employee was also required to wait in the canteen, where he could eat and drink before being re-tested. The employee tested positive for alcohol in all tests that were administered by Chill Beverages.
The employee prepared a statement in which he submitted that he had used medication (cough mixture) and was unaware that it contained alcohol. The evidence at the arbitration was that the employee did not smell of alcohol and displayed no visible signs of being intoxicated. He was also a first offender, with six years of service at the time of his dismissal.
In summary, the employee’s case was that he unknowingly contravened the Policy because he did not know that the cough mixture contained alcohol.
Chill Beverages argued that it had a “zero tolerance” policy, and that an employee working on machinery while under the influence posed a serious occupational safety risk.
The employee referred a dispute to the CCMA alleging an unfair dismissal. The arbitrator considered Chill Beverages’ Policy and found that each case must be considered on its own merits taking into account the nature of the employee’s role, the risk to the work environment, and the employee’s service record.
The arbitrator found that the employee was a credible witness, and no evidence was presented to dispute the employee’s claim that he was unaware that the cough mixture contained alcohol. The arbitrator found that certain elements were important, namely that the employee was not intoxicated and did not show signs of intoxication. The arbitrator determined that there needs to be independent evidence of an employee being under the influence of alcohol or being intoxicated (despite testing positive) and that the employee was clearly not intoxicated. The arbitrator referred to Samancor Chrome Ltd (Western Chrome Mines) v Willemse & Others (referenced above) where it was established that numerous factors can lead to a positive breathalyser test result, other than consuming alcohol.
Chill Beverages challenged the finding of the arbitrator that the employee did not violate the Policy, despite testing positive, which had not been disputed. Chill Beverages also questioned the conclusion of the arbitrator that evidence indicated that the employee was not under the influence (impairment) of alcohol, despite testing positive. Further, Chill Beverages submitted that the arbitrator failed to recognise that the nature of the work being carried out at Chill Beverages by the employee was high risk.
In summary, Chill Beverages challenged the arbitrator’s award, because, it argued, the arbitrator had disregarded the “zero tolerance” mandate (despite acknowledging the strict Policy) on the basis that the employee had unknowingly consumed alcohol in medication, his apparent lack of intoxication, clean record, and the distinction made by the arbitrator regarding detectable levels of alcohol and actual impairment.
The Labour Court rejected the arguments presented by Chill Beverages and held that the arbitrator had, appropriately, considered the employee’s credibility, mitigating factors, and assessed all elements holistically. The Labour Court emphasised the duty on the employer to show that dismissal is both suitable and proportionate to the offence. The Labour Court also emphasised that it must be demonstrated that a person’s abilities are impaired and that they are therefore unable to perform their assigned duties. The Labour Court held (at paragraph 44) that “It is abundantly clear from the above authority that any zero-tolerance policy will only be accepted where the circumstances necessitate its implementation by the employer. The employer is therefore obligated to show that dismissal is appropriate and proportional to the offence that was committed”.
While the Labour Court applied established legal principles, the Chill Beverages Judgment does raise some important questions. In this case, the old adage “all’s well that ends well” seems to apply. The outcome may have been vastly different, if an incident or accident occurred while the employee was using the forklift which resulted in injuries, or even death, to other employees. It is precisely because it is not always possible to show objectively, that there is impairment, that employers implement “zero tolerance” policies. Objective impairment is not necessarily present in each and every incident or accident where normal response times, reflexes and judgment may have been affected and could be a direct cause of the incident or accident. Had an incident or accident occurred, and the employee tested positive for alcohol, and if the employer was not able to demonstrate that its policies and procedures prevented persons from accessing a workplace with alcohol in the bloodstream, the employer would have faced extensive consequences including administrative fines (under the Mine Health and Safety Act) or prosecution (under the Occupational Health and Safety Act, Mine Health and Safety Act and the Criminal Procedure Act).
There is also the important balancing of responsibilities under the occupational health and safety laws in the form of the “duty of care” that is placed on employees in terms of the Occupational Health and Safety Act, and the Mine Health and Safety Act. Under both the Occupational Health and Safety Act, and the Mine Health and Safety Act, employees are required to take care of their own health and safety and the health and safety of fellow employees. This “duty of care” could include an obligation on employees, who are aware of a “zero tolerance” policy, to check whether anything (particularly medication) they may want to ingest, contains alcohol.
The Chill Beverages Judgment consistently applies the employment law principles regarding “zero tolerance” policies. Detailed consideration of health and safety responsibilities under the Occupational Health and Safety Act, and the Mine Health and Safety Act, including the “duty of care” should however also be considered. This does not mean that dismissal is justified in each and every case, but a proper balance must be achieved between employment law principles and the responsibilities regarding occupational health and safety.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.