In recent years, South African courts have experienced a rise in dismissal disputes linked to employers’ enforcement of zero‑tolerance alcohol and substance abuse policies. Central to these disputes is the balancing act between employers’ statutory obligations to ensure a safe work environment and the requirement that dismissals remain substantively and procedurally fair. Recent case law reflects an evolving judicial approach that increasingly demands contextual, evidence‑based justification for dismissal rather than reliance on biochemical test results alone.

Deference to zero-tolerance policies

In September 2022, the Labour Appeal Court (LAC) dealt with the matter of SGB Cape Octorex (Pty) Ltd v Metal and Engineering Industries Bargaining Council and others, where the employee was reportedly seen smoking cannabis at work, tested positive for THC following urine and saliva tests, and dismissed for having tested positive. The LAC recognised that the employer is at liberty to set and enforce its own disciplinary standards and apply these consistently. To this end, the LAC found the employer’s decision to be fair taking into account the nature of its business and similar sanctions that had been imposed on similarly offending employees.

In June 2023, in Marasi v Petroleum, Oil and Gas Corporation of South Africa (SOC) Ltd, the Labour Court considered a breach of PetroSA’s substance abuse policy adopted in compliance with the Mine Health and Safety Act, 1996 (MHSA). The policy had specific cut-off limits for the various substances, including cannabis Anything above the cut-off limit was considered a ‘positive test’ or ‘intoxication’, with the result that the employee would be deemed unfit for duty until such time as they tested either negative or below the cut-off level. In dealing with the employee who tested positive for cannabis, PetroSA had conducted various tests, including a blood test. The Labour Court accepted that a negative test result was an inherent requirement of the job of all PetroSA employees given the nature of their work environment and the requirements of health and safety legislation. Therefore, the employee’s unfair discrimination claim failed.

Caution against blanket approaches when it comes to cannabis

In another cannabis related case, Enever v Barloworld Equipment, a Division of Barloworld SA (Pty) Ltd decided in April 2024, the LAC appreciated that employers have justifiable occupational health and safety reasons for adopting zero-tolerance policies, but cautioned against a blanket approach that is not informed by the employer’s surrounding circumstances and employees’ constitutional rights.

In this case, the LAC held that the zero-tolerance policy was irrational and violated the constitutional right to privacy where it prohibited office-based employees that do not work with or within an environment that has high-risk equipment and machinery, from consuming cannabis in the privacy of their homes. The employee was awarded 24 months’ compensation for her automatically unfair dismissal.

Beyond the test results – impairment, appropriateness and proportionality

The importance of context and the need to look beyond the test results in dealing with breaches of zero-tolerance policies has been re-emphasised in a series of more recent decisions of the Labour Court involving alcohol.

In Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, the employer’s Alcohol, Drug and Substance Abuse Policy prohibited employees from having any intoxicating substances in their bloodstream during working hours and forbade them from using alcohol during work or within six hours before the start of their shift.

An employee was dismissed following various positive test results. He insisted that he had only consumed a cough mixture, unaware that it contained alcohol.  The Labour Court, in its judgment in July 2025 and following earlier LAC case authority relating to the enforcement of zero-tolerance policies, reiterated that a zero-tolerance policy would be fair where the circumstances necessitate its implementation by the employer, but that the employer still had a duty to show that dismissal was an appropriate and proportionate response to the employee’s conduct.

In the circumstances of this case, where there was no evidence to suggest that the employee had consumed alcohol or that he was intoxicated and given his clean disciplinary record and long service with no history of alcohol misuse, his dismissal was found to be substantively unfair.

This principle was followed in September 2025 in Msitshana v Commission for Conciliation, Mediation Arbitration and Others, where another employee claimed to have consumed alcohol by taking cough syrup. In this case, however, the employee’s dismissal was found to be an appropriate and proportionate sanction, where there were other facts that suggested that she had consumed more alcohol than that which would have been present in medication, and she had previously received a final written warning for the same conduct and been referred to the employee assistance programme.  

In Cipla Distribution Gateway (Pty) Ltd v Mwale & Others, decided in February 2026, the employer’s main contention was that, once it was established that the employee tested positive for alcohol, the commissioner was bound to apply the company’s zero-tolerance policy and uphold the dismissal, particularly given that the employee was on a final written warning for similar misconduct.

The employee, who had been employed as a warehouse operator, maintained that he only consumed a Bioplus energy drink on the morning in question, which could have caused the positive breathalyser reading. The employer’s evidence did not indicate any impairment, but only that the employee ‘smelled of alcohol’. There was no confirmatory blood test or proof that the breathalyser device used was properly calibrated.

The Labour Court rejected the employer’s mechanistic approach and confirmed that a final written warning was not a ‘license for the automatic or mechanical imposition of dismissal’. It built on the above jurisprudence that an employer cannot simply point to a zero-tolerance policy and a positive test result to justify a dismissal. The employer must establish, on reliable evidence, both the misconduct relied upon and that dismissal was an appropriate and proportionate response to the alleged transgression.

Key takeaways

While zero-tolerance alcohol or substance abuse policies may be necessary in certain circumstances to ensure compliance with an employer’s workplace health and safety obligations, the fact that an employer’s policy provides for zero-tolerance does not mean that conduct that may be in breach of the policy should automatically result in dismissal. In enforcing zero-tolerance policies, employers are expected to engage in a merits-based analysis that considers the particular context and circumstances of each case.  

Employers must be able to demonstrate that the policy itself is justifiable and rationally connected to the actual safety risks, considering their working environments and the nature of employees’ duties and that any dismissals are proportionate and appropriate, considering all the facts.

While the courts acknowledge that high-risk industries may require stricter rules, it remains a requirement that employers prove fairness and not merely rely on a biochemical presence to justify dismissal.

Written by AmandlakaThixo Magubane, Senior Associate, Bowmans