Alcohol at Work Disciplinary Actions

An employee who arrives at work under the influence of alcohol presents a South African employer with two separate obligations that have to be met at the same time. The first is the duty to keep the workplace safe for everyone else. The second is the duty to deal with the affected employee fairly and lawfully. Getting either one wrong can expose the business to a CCMA dispute.

The legal framework that governs alcohol at work is not a single statute. It is a combination of the Labour Relations Act 66 of 1995, the Occupational Health and Safety Act 85 of 1993, and the Employment Equity Act 55 of 1998, read together with the Code of Good Practice on Dismissal contained in Schedule 8 of the LRA. Each of these instruments shapes what an employer may and may not do.

This article sets out, from an employer’s perspective, how South African law expects alcohol at work to be handled: what a lawful policy should contain, how misconduct differs from incapacity, what a fair disciplinary procedure looks like, when testing is permissible, and where the CCMA risk of an unfair dismissal finding arises.

Why Alcohol at Work Is Both a Safety and a Legal Issue

Section 8 of the Occupational Health and Safety Act 85 of 1993 requires every employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of employees. An employee whose judgement or coordination is impaired by alcohol is a direct risk to that obligation, particularly in mining, construction, transport, manufacturing, healthcare, and any setting where machinery or the public is involved.

At the same time, the employee retains the protections of the Labour Relations Act 66 of 1995. A dismissals dispute that lands at the CCMA is decided on whether the employer acted for a fair reason and followed a fair procedure. The safety duty does not displace the fairness duty, and an employer who ignores one in favour of the other usually loses the case.

The Legal Framework: LRA, OHSA and the Employment Equity Act

Three statutes do most of the work in this area of employment law, and an employer should understand how each one fits before taking disciplinary action.

• The Labour Relations Act 66 of 1995. Section 185 gives every employee the right not to be unfairly dismissed, and section 188 sets out the requirements of a fair dismissal. Schedule 8, the Code of Good Practice on Dismissal, is the practical guide arbitrators apply when they evaluate conduct and incapacity cases.
• The Occupational Health and Safety Act 85 of 1993. Section 8 imposes the general duty to maintain a safe workplace, and section 14 requires employees to take reasonable care of their own safety and that of others, including not behaving in a way that endangers fellow workers.
• The Employment Equity Act 55 of 1998. Section 7 regulates medical testing and psychological testing in employment. Alcohol testing is treated as medical testing, and it is only permissible where there is a clear legislative right or where it is justifiable in the light of medical facts, employment conditions, social policy, or the fair distribution of employee benefits.

Read together, these statutes mean that an employer may regulate, test for, and discipline alcohol-related conduct at work, but only within a defined procedural and substantive framework.

Start With a Clear, Lawful Alcohol Policy

The single most common reason employers lose alcohol-related disputes at the CCMA is the absence of a clear, written rule that the employee knew about. Without a policy, it is difficult to prove that the employee contravened a standard that was actually in force. A lawful workplace alcohol policy should set out, in plain language:

• The standard of conduct expected, including a prohibition on consuming alcohol on duty, on company premises, or while operating company equipment
• A clear rule on reporting for duty under the influence, and the blood or breath alcohol threshold that will be regarded as a breach
• The circumstances in which testing may take place, the methods used, and the consequences of a positive result or a refusal to test
• The distinction between conduct that will be treated as misconduct and conduct that will be managed as incapacity, where dependency is disclosed or suspected
• The support available to employees who seek help, including employee assistance programmes, counselling, and rehabilitation referrals

The policy should be issued to every employee, explained in induction and refresher training, and consistently enforced. Inconsistency, where one employee is disciplined and another is overlooked for the same conduct, is one of the fastest routes to an unfair dismissal finding.

Misconduct or Incapacity? The Critical Distinction

South African labour law treats alcohol policies in the workplace through two distinct lenses, and choosing the correct one is essential. The first is misconduct. The second is incapacity. They are not interchangeable, and they call for entirely different procedures.

Where an employee simply drinks on duty, or arrives at work having consumed alcohol in breach of a known rule, the matter is ordinarily dealt with as misconduct under the ordinary disciplinary code. The enquiry focuses on whether the employee broke a rule that was valid, reasonable, consistently applied, and of which the employee was aware, and whether dismissal was an appropriate sanction.

Where. The employee is suffering from alcohol dependency, Schedule 8 of the LRA treats the condition as a form of incapacity. Item 9 of Schedule 8 directs employers to investigate the cause and nature of the incapacity, to consider whether it is permanent or temporary, and to consider alternatives short of dismissal, such as counselling, treatment, or rehabilitation. Dismissing an alcoholic employee without first engaging this enquiry is a classic, and costly, unfair dismissal.

The distinction matters because it changes what the employer must do. A misconduct enquiry asks whether the employee is at fault. An incapacity enquiry asks whether the employee can still do the job, and if not, whether the situation can reasonably be accommodated. In some cases both routes are open, but the chosen route must be applied properly and consistently.

Following a Fair Disciplinary Procedure Under Schedule 8

Item 3 and Item 7 of Schedule 8 to the LRA set out the requirements of a fair disciplinary procedure in misconduct cases. Failure to follow these steps, even where the underlying conduct is serious, regularly overturns dismissals at the CCMA. A fair process ordinarily requires:

• That the employee is informed in writing of the allegations, in a form and language the employee understands, with sufficient detail to prepare a response
• That the employee is given reasonable time to prepare, and is allowed the assistance of a trade union representative or fellow employee
• That the enquiry is conducted by an impartial chairperson who has not investigated the matter
• That the employee is given the opportunity to state a case, to call witnesses, to question the employer’s witnesses, and to lead evidence in mitigation of sanction
• That the outcome, and the sanction, are communicated in writing with reasons

The sanction must be proportionate. Relevant factors include the nature of the work, the risk created by the impairment, the employee’s length of service and disciplinary record, and whether the employee has shown genuine insight or remorse. In safety-sensitive environments, dismissal for a serious breach may well be fair, but it is never fair without proper process.

Lawful Alcohol Testing in the Workplace

Because section 7 of the Employment Equity Act classifies alcohol testing as medical testing, an employer cannot test at will. Testing is justifiable only where it is supported by a clear rule in the workplace policy, where the method is reliable and properly administered, and where the testing bears a rational connection to the inherent requirements of the job or to workplace safety.

• Random or routine testing is most defensible in safety-sensitive environments such as transport, mining, and construction
• Testing should be carried out using properly calibrated equipment, by trained personnel, and in accordance with recognised standards
• A positive first result should ordinarily be confirmed by a second, more reliable method before disciplinary action is taken
• Employees should be told in advance, through the policy, when and how testing will occur and what a positive result or a refusal will mean
• Refusal to submit to a lawful test may itself be dealt with under the disciplinary code, provided the policy makes this clear

Poorly handled testing produces weak evidence and, in some cases, a separate discrimination dispute under the Employment Equity Act. Done properly, it produces evidence that an arbitrator can rely on.

The CCMA Risk of an Unfair Dismissal Finding

Where an employee is dismissed for an alcohol-related matter and refers an unfair dismissal dispute, the case will ordinarily be heard by the CCMA or, in larger matters, the Labour Court. The commissioner applies section 188 of the LRA and Schedule 8, and the employer carries the onus of proving both a fair reason and a fair procedure.

Common reasons employers lose these disputes are well established in CCMA awards and Labour Court judgments:

• There was no clear, written alcohol policy, or the employee was never properly informed of it
• The employee was dismissed for misconduct when the true problem was dependency that ought to have been managed as incapacity
• The testing process was unreliable, or the evidence of impairment was not properly recorded
• The procedure was unfair, for example the employee was not given notice of the allegations or was denied the right to representation
• The sanction was inconsistent with how similar conduct was treated in other cases

The consequences of an unfair dismissal finding are significant. The CCMA may order reinstatement, re-employment, or compensation of up to 12 months’ remuneration. The cost of defending a poorly run matter, even where it is eventually won, almost always exceeds the cost of taking proper advice at the outset.

Frequently Asked Questions

Can an employer dismiss an employee for being under the influence of alcohol at work?

Yes, but only where there is a clear and lawful workplace policy, fair testing evidence, and a fair disciplinary procedure under Schedule 8 of the Labour Relations Act 66 of 1995. The sanction must also be proportionate, taking into account the nature of the work, the risk created, and the employee’s record. A dismissal without these elements risks being found unfair at the CCMA.

Is alcoholism treated as misconduct or incapacity under South African labour law?

It can be either. Where an employee simply breaches a known rule by drinking on duty or reporting for duty under the influence, the matter is ordinarily handled as misconduct. Where the employee is alcohol-dependent, Schedule 8 of the Labour Relations Act treats the condition as incapacity, and the employer must investigate the cause, consider whether it is temporary or permanent, and consider alternatives short of dismissal such as counselling or rehabilitation.

Is workplace alcohol testing legal in South Africa?

Yes, but it is regulated. Section 7 of the Employment Equity Act 55 of 1998 treats alcohol testing as medical testing, which is permissible only where justifiable in the light of medical facts, employment conditions, social policy, or the fair distribution of benefits. Testing should be provided for in a clear workplace policy, use reliable and properly calibrated methods, and be applied consistently.

Can an employee refuse to take an alcohol test at work?

An employee may refuse, but refusal usually carries consequences. If testing is lawfully provided for in the workplace alcohol policy and is justifiable under section 7 of the Employment Equity Act, refusal can itself be dealt with under the disciplinary code, and it can also be used as evidence in any subsequent enquiry.

What happens if an employer is found to have unfairly dismissed an employee for an alcohol-related matter?

The CCMA or Labour Court may order reinstatement, re-employment, or compensation of up to 12 months’ remuneration. The employer also bears the cost and disruption of defending the dispute, which is why clear policies, fair procedures, and proper advice before action is taken almost always cost less than defending a poorly run matter.

Get help with a workplace matter. The Commercial Law department at Otrebski Attorneys advises South African employers on workplace alcohol policies, fair disciplinary procedure, lawful testing, and the CCMA risk of unfair dismissal. Our 100% women-led, Level 4 B-BBEE practice works from a single Sandton office, is rated 5 stars across 12 reviews, and has Director Nastasja Otrebski overseeing commercial matters.

Disclaimer. This article is general information about South African labour and occupational health and safety law, not legal advice for a specific workplace matter. Disciplinary outcomes, incapacity assessments, and CCMA procedure depend on the facts of each case and on current statutory and case-law practice. For advice on a particular employment matter, consult a qualified attorney.