{"id":12206,"date":"2025-11-25T13:19:51","date_gmt":"2025-11-25T11:19:51","guid":{"rendered":"https:\/\/dotnewsconnect.co.za\/law\/?p=12206"},"modified":"2025-11-25T13:19:56","modified_gmt":"2025-11-25T11:19:56","slug":"alcohol-at-work-the-cough-mixture-defence","status":"publish","type":"post","link":"https:\/\/dotnewsconnect.co.za\/law\/2025\/alcohol-at-work-the-cough-mixture-defence\/","title":{"rendered":"Alcohol at Work: The Cough Mixture Defence"},"content":{"rendered":"\n
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\u201cThe employer shall ensure, as far as is reasonably practicable, that all persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.\u201d (Occupational Health and Safety Act)<\/p>\n<\/blockquote>\n\n\n\n

The season of goodwill, holidays, celebrations, and year-end functions is upon us once again. And with it comes a timely reminder to employers that, while their \u201czero tolerance\u201d alcohol-at-work policies may be key to maintaining health and safety in the workplace, they have their limits when it comes to disciplining offenders.<\/p>\n\n\n\n

Two teaspoons of cough mixture<\/h6>\n\n\n\n

A forklift driver with an impeccable six-year record of service at a beverage manufacturer arrived an hour late for work, then failed a routine breathalyser test \u2013 routine in that all employees knew they would be tested on entering and leaving the factory.<\/p>\n\n\n\n

He was adamant that he hadn\u2019t been drinking but explained that he\u2019d had some of his neighbour\u2019s cough mixture the night before and another two teaspoons that morning, without knowing that it contained alcohol as he hadn\u2019t read the label.<\/p>\n\n\n\n

Critically, he didn\u2019t smell of alcohol and displayed no visible signs of impairment or of being intoxicated.<\/p>\n\n\n\n

Nevertheless, he was dismissed for gross misconduct on the grounds that he had breached his employer\u2019s Alcohol, Drug and Substance Abuse Policy, which he knew about and which prohibits employees from having any intoxicating substances in their bloodstream during working hours. It further forbids them from using any alcohol during work or within six hours of the start of their shift. What\u2019s more, it includes a zero-tolerance clause to the effect that no alcohol in an employee\u2019s blood is permitted, and that higher levels of alcohol will automatically lead to a disciplinary hearing and possible dismissal. <\/p>\n\n\n\n

The employee disputed his dismissal at the CCMA (Commission for Conciliation, Mediation and Arbitration) which found it to be substantively unfair and ordered his reinstatement with an award of R24,600 in lieu of arrear salary. This despite the employer\u2019s explanation that a zero-tolerance approach was required because an employee working on machinery while under the influence posed a serious occupational and health risk.<\/p>\n\n\n\n

The employer took the CCMA\u2019s reinstatement award on review to the Labour Court, but it was unable to convince the Court that dismissal was justified. Its failure to do so holds valuable lessons for all employers and employees.<\/p>\n\n\n\n

What must an employer prove to justify dismissal?<\/h6>\n\n\n\n

As an employer, your duty to ensure health and safety in the workplace may well call for a zero-tolerance policy against substance abuse, particularly in safety-sensitive situations like employees operating heavy machinery (the heavy-duty forklift in this case being a good example).<\/p>\n\n\n\n

But a zero-tolerance policy \u201cwill only be accepted where the circumstances necessitate its implementation\u201d. Even then, it doesn\u2019t mean that you can automatically dismiss an employee contravening it. You have to go further.<\/p>\n\n\n\n

You need to treat each case on its own merits, and be ready to justify whatever sanction you decide to impose by proving that:<\/p>\n\n\n\n