Taking cough medicine could breach companies’ no-alcohol in the workplace policies. Graphic: John McCann/M&G
It’s flu season; fevers are making the rounds and medicine sales are on the rise. That said, do you read the labels of the medication you consume? If not, beware — what you swallow to feel better today could cost you your job tomorrow.
A recent case heard by the labour court yields a cautious reminder when taking over-the-counter medication (or, in this case, medication from a neighbour) containing alcohol.
The third respondent in this case was employed by the applicant, Chill Beverages International, first as a forklift driver and then as a warehouse controller from June 2017 to May 2023. On 20 May 2023, the employee was dismissed for alleged gross misconduct after failing a breathalyser test despite his clean disciplinary record and the absence of any alcohol misuse.
Chill Beverages manufactures and distributes various beverages, some of which contain alcohol. The company has implemented an alcohol, drug and substance abuse policy of which all employees are aware — particularly given that all employees are subjected to a breathalyser test when entering or exiting the factory. The policy prohibits employees from having any intoxicating substances in their bloodstream during work hours and forbids employees from using any alcohol during work or within six hours before the start of their shift. It is therefore self-evident that high levels of alcohol in one’s bloodstream would automatically lead to a disciplinary hearing and possible dismissal.
On the day of his dismissal, the employee was an hour late to work. The employee tested positive for alcohol and had to undergo the breathalyser test several times with multiple devices to ensure that the initial device was not faulty. The employee was then required to wait in the canteen where he would eat and drink before being retested. The employee was tested again and failed once more.
The employee then wrote a statement and submitted that he took medication that he was unaware contained alcohol. Indeed, the employee was said to not have smelt of alcohol or shown any visible signs of intoxication. He had never faced any disciplinary action in the six years he had worked at Chill Beverages. Despite this, the employee was then dismissed for alleged gross misconduct for failing several breathalyser tests.
Was the dismissal fair?
Aggrieved by his dismissal, the employee referred a dispute in terms of section 188 read with section 191 of the Labour Relations Act (LRA). Section 188 of the LRA outlines what constitutes an unfair dismissal, while section 191 sets out the procedure for referring such disputes to the appropriate forum, either the Commission for the Conciliation, Meditation and Arbitration (CCMA) or a bargaining council with jurisdiction.
At the arbitration, the employee contended that he did not consume alcohol the day before his shift or on the morning of his shift. Instead, he was unwell the day before and consequently obtained a cough mixture from a neighbour and consumed it in the evening prior to his shift, and took two teaspoonfuls before walking to work on the morning of his dismissal. The employee further explained that he was unaware that the cough mixture he took contained any alcohol because he did not read the label.
Although the employee did not contest the validity of the various breathalyser tests that were conducted, he said he had unknowingly contravened the alcohol policy and therefore his dismissal was not an appropriate sanction.
The employee called a witness regarding consistency issues, questioning why Chill Beverages had not dismissed two other employees for seemingly similar offences. But the commissioner found that Chill Beverages had acted consistently and nothing turned on this issue. Another witness in this dispute, called by Chill Beverages, explained that an employee working on machinery while intoxicated posed a serious occupational and health risk, thus providing context as to why it was necessary for the company to adopt a zero-tolerance alcohol policy.
Numerous factors can lead to a positive breathalyser test result
In his inquiry, the commissioner found no evidence to suggest that the employee had consumed alcohol the evening before or on the morning of his shift, citing the fact that the employee showed no signs of drunkenness and considered his clean disciplinary record to support his stance.
The commissioner further accepted that the employee was a credible witness and that there was no evidence provided to demonstrate that the employee was aware that the cough mixture he consumed contained alcohol.
The commissioner referred to the case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others to show that numerous factors can lead to a positive breathalyser test result, such as yeast in food or not eating for several hours. It is on these grounds that the commissioner found the employee’s dismissal to have been substantively unfair, where substantive unfairness concerns the justification for the dismissal, rather than the procedure followed.
The commissioner ordered the reinstatement of the employee, along with payment of R 24 600 in lieu of arrear salary. Chill Beverages, dissatisfied with the outcome, took the matter on review.
The review application
The appropriate test for review was settled by the constitutional court in the landmark case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others. The threshold test for reasonableness is to consider whether “the decision reached by the commissioner is one that a reasonable decision-maker could not reach”. Put differently, a result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material before them.
In tandem with the reasonableness standard as set out in Sidumo, the court on review used an abundance of case law to clarify that it cannot be held that the commissioner’s decision was unreasonable. For instance, the court cited the case of Air Products SA (Pty) Ltd v Matee and Others to, first, illustrate that the working environment of Chill Beverages cannot be said to have been hazardous enough to employees, contractors and the community to justify the validity of the alcohol policy, and second, to set out that employers have a duty to show that a dismissal is suitable and proportionate to the offence.
The court also cited the case of Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others to bolster that the law does not allow an employer to adopt a zero-tolerance policy, regardless of how appropriate it may be, and then expect a commissioner to simply fall in line with such an approach.
Thus, on review, the court held that the award issued by the commissioner, in that the employee’s dismissal was substantively unfair, was fair and clearly fell within reasonable bounds. The court was satisfied that the commissioner was not misdirected in accepting the reason provided by the employee in respect of having failed the breathalyser test, given that the employee presented a “holistic, reasonable explanation”.
Chill Beverages’ application for review was dismissed, and the court upheld the commissioner’s award.
Protect against dismissal for honest mistakes
Notably, the court was cautious in its consideration of a cost order, as hefty cost orders may discourage parties who, in good faith, seek to have their disputes decided by the court. Although Chill Beverages did not succeed in the present review application, the court is satisfied that Chill Beverages proceeded in good faith, in that it was genuinely aggrieved by the outcome of the arbitration proceedings, and that the company sought to review that outcome in good faith. It is on these grounds that the court made no order as to costs.
This judgment serves as a reminder to employees to remain mindful of workplace policies, but also as a reassurance that South African labour laws, permeated by strong case law, are designed to uphold fairness and protect against dismissal for honest mistakes.
And perhaps, above all, this judgment serves as a gentle nudge to always read labels on cough mixtures.
Anelisa Zungu is a candidate attorney and Richard Brown a director at Herold Gie Attorneys.