Workplace breathalyser tests and zero-tolerance policies are under the spotlight again.

In the recent Labour Court judgement Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023, the court had to consider whether the Commission for Conciliation, Mediation and Arbitration’s (CCMA) arbitration award in favour of an employee who was dismissed for failing a breathalyser test was reviewable.


The employee was dismissed after he failed several breathalyser tests. The employer had a zero-tolerance policy in place for drugs and alcohol. The policy states that employees may be summarily dismissed for misconduct if they test positive for drugs or alcohol.

The employee subsequently consulted his doctor who took the employee’s blood sample for testing and the results came back negative. The employee was still dismissed.

At the CCMA, the employee led evidence by a chemical pathologist who testified that a breathalyser test may in certain instances produce false positive results and that the more reliable test is that of a blood sample tested in laboratory conditions.

Of particular importance is that the chemical pathologist stated that in his opinion, the result DID NOT mean that any alcohol was not in the employee’s bloodstream, it merely meant that the blood alcohol level did not exceed 0.010 g/dl, but for all clinical purposes, the result was negative.

The CCMA found in favour of the employee.


The employer took the arbitration award on review and argued that its zero tolerance policy does not require the employee to be intoxicated or to be unable to perform his duties. The zero tolerance policy only requires the employee to have a blood alcohol level of anything over 0.000g/dl.


The Labour Court dismissed the employer’s application and accepted the employee’s evidence that the breathalyser tests may produce false positive results as the evidence was corroborated by an expert.



Employers are cautioned not to solely rely on breathalyser tests. Provision should be made in contracts of employment for employees to consent to blood tests. In addition to the breathalyser testing, physical observations of the employee in question remain important, including establishing whether the employee’s faculties were impaired to such an extent that the employee could not perform his/her duties.


Employers are cautioned not to view zero tolerance policies as “silver bullets” that should result in dismissal in all instances. Employers are still required to align their zero tolerance policies with their operational requirements and apply the said policies in accordance with the circumstances of each offence. While employers have the prerogative to set rules in the workplace, the Labour Court has previously made it clear that the implementation of zero tolerance policies does not necessarily mean that the Labour Court will not have a say in the matter.

In the case of Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others the Labour Court stated the following:

“But the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners.”

Contact us for more information on breathalyser tests and zero tolerance policies.

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