IOL News reports that the Western Cape Labour Court has upheld a CCMA ruling reinstating a warehouse employee dismissed after testing positive for alcohol at work, finding that the sanction of dismissal was not justified in the circumstances.
Mike Mwale, employed by Cipla Distribution Gateway, was dismissed after a breathalyser test recorded an alcohol reading of 0.019%. The company enforces a zero-tolerance policy on alcohol consumption during working hours. Following the test, Mwale was charged with testing positive for alcohol or drugs, or being in possession of alcohol while on duty. He was subsequently dismissed.
Mwale maintained that he had consumed a Bioplus energy drink on his way to work and had not drunk water afterwards, which he believed may have influenced the breathalyser result. He denied consuming alcohol and disputed the accuracy of the device, arguing that he was not informed of his right to request a confirmatory blood test.
A human resources officer testified that, in line with company policy, employees who dispute a breathalyser result may request further blood testing, which the employer would arrange. She stated that Mwale did not request such a test.
The Commission for Conciliation, Mediation and Arbitration (CCMA) earlier found the dismissal procedurally fair but substantively unfair. The commissioner ordered Mwale’s reinstatement with limited backpay.
Cipla approached the Labour Court to review and overturn the arbitration award, contending that the commissioner failed to apply its zero-tolerance rule strictly.
The company further argued that dismissal was appropriate because Mwale was already on a final written warning for similar misconduct. On a previous occasion, he had recorded a reading of 0.068% and admitted to drinking alcohol into the early hours before reporting for duty. The warning, valid for 12 months, was still in force at the time of the latest incident.
Before the court, Cipla submitted that the CCMA erred by not enforcing the zero-tolerance policy as an absolute standard. Judge Molatelo Makhura said the central question was whether dismissal was fair, particularly given that Mwale displayed no signs of intoxication or impairment and the recorded alcohol level was very low. The judge also noted that the employer did not present reliable evidence confirming the calibration and accuracy of the breathalyser device.
Fairness, the court held, requires more than reliance on policy alone. An employer must prove the alleged misconduct on credible evidence and demonstrate that dismissal is a proportionate response. Judge Makhura found that the commissioner had properly weighed the company’s zero-tolerance policy against the factual matrix and the broader requirement of fairness.
“In circumstances where the employer failed to establish impairment, failed to lead reliable evidence confirming the breathalyser result, and failed to demonstrate that dismissal was a proportionate response to the misconduct proved, the conclusion that the dismissal was substantively unfair falls within the bounds of reasonableness,” the judge said. The court dismissed Cipla’s review application, leaving the CCMA’s reinstatement order intact.
by Zelda Venter