Zero-tolerance policies: When a positive test doesn't justify dismissal

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The employee tested positive on breathalyser tests but claimed it resulted from cough mixture containing alcohol, which he unknowingly consumed the evening before and morning of his shift.

He did not contest the positive results, showed no signs of intoxication, and had a clean disciplinary record. Despite the employer’s zero-tolerance policy prohibiting any alcohol in the bloodstream during work hours or within six hours before, the employee was dismissed for misconduct after arriving late and failing multiple tests.

The CCMA ruled the dismissal substantively unfair, ordering reinstatement and arrear salary.

The Commissioner found:

1. no evidence the employee consumed alcohol conventionally or was intoxicated;
   
2. he had a clean record;
   
3. he credibly did not know the cough mixture contained alcohol.
   

The policy required cases to be considered on their merits, factoring the employee’s role, workplace risk, and service record; independent evidence of intoxication was needed, which was absent.

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The employer reviewed the award at the Labour Court (LC), arguing the decision was unreasonable, the policy was breached, and the high-risk machinery job warranted strict compliance.

The LC applied the Sidumo test: whether a reasonable decision-maker could reach the Commissioner’s conclusion. It held zero-tolerance policies are accepted if circumstances necessitate them, and employers must prove dismissal is appropriate and proportional.

The LC dismissed the review, finding the Commissioner’s award reasonable. The Commissioner understood the positive tests, policy, and zero-tolerance clause but noted the policy’s merit-based assessment, lack of intoxication evidence, credible testimony, and impeccable six-year record made dismissal inappropriate.

Conclusion

Zero-tolerance policies may be justified in certain circumstances, but employers must demonstrate this in each case. Alcohol in the system does not necessarily mean intoxication or that breach warrants dismissal. Fairness requires considering each case on its own merits.