Alcohol at Work: The Cough Mixture Defence in South Africa

“The employer shall ensure, as far as is reasonably practicable, that all persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.”
— Occupational Health and Safety Act

The festive season, year-end functions, and holiday celebrations bring predictable risks into the workplace. For employers, this is when alcohol-at-work policies are most frequently tested — and sometimes found wanting.

While many employers rely on zero-tolerance alcohol policies to protect health and safety, South African labour law makes it clear that such policies are not absolute shields. Even where safety-critical work is involved, dismissal will only be upheld if it is fair, justified, and proportionate to the misconduct.

A Labour Court review involving the so-called “cough mixture defence” provides a useful illustration of where the limits lie.

The facts: two teaspoons of cough mixture

The employee in question was a forklift driver employed by a beverage manufacturer. He had an unblemished six-year service record. On the day in question:

• he arrived one hour late for work; and
• he failed a routine breathalyser test conducted at the factory gate

Breathalyser testing was standard practice and known to all employees.

The employee denied consuming alcohol. He explained that:

• he had taken his neighbour’s cough mixture the night before; and
• he had taken two teaspoons again that morning,
• without realising that the medicine contained alcohol

Importantly:

• he did not smell of alcohol; and
• he displayed no visible signs of intoxication or impairment

Dismissal under a zero-tolerance policy

Despite these circumstances, the employee was dismissed for gross misconduct. The employer relied on its Alcohol, Drug and Substance Abuse Policy, which provided that:

• employees may not have any intoxicating substance in their bloodstream during working hours
• alcohol use is prohibited during work or within six hours before a shift
• the policy adopted a zero-tolerance approach, meaning any alcohol detected could trigger disciplinary action and possible dismissal

The employer argued that strict enforcement was essential because a forklift driver operating heavy machinery while under the influence posed a serious occupational health and safety risk.

The CCMA and Labour Court outcomes

The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA found the dismissal to be substantively unfair and ordered:

• the employee’s reinstatement; and
• payment of R24,600 in compensation in lieu of arrear salary

The employer took the award on review to the Labour Court. The Court, however, refused to interfere with the CCMA’s decision.

The employer’s failure to overturn the award highlights several critical principles of South African labour law.

What must an employer prove to justify dismissal?

South African law recognises that employers have a duty to ensure workplace safety, particularly in safety-sensitive environments. Zero-tolerance policies are not unlawful in themselves.

However, the courts have repeatedly emphasised that:

A zero-tolerance policy will only be accepted where the circumstances necessitate its implementation — and even then, it does not permit automatic dismissal.

To justify dismissal, an employer must prove more than a technical breach of policy. In particular, the employer must establish that:

• A workplace rule existed
• The employee was aware of the rule
• The employee wilfully breached the rule
• Dismissal was appropriate and proportional, taking into account:
  • the nature of the employee’s job
  • the importance of the rule
  • the employee’s disciplinary record
  • principles of progressive discipline
  • whether the misconduct rendered the employee unfit for duty
  • the actual or potential risk to workplace safety

These principles are central to fair dismissal standards under South African labour law.

For broader context, see our guidance under
Labour Law
and disciplinary risk management via
Disciplinary Hearings.

Why the employer’s case failed

In this matter, the employer encountered two decisive difficulties.

1. No proof of wilful misconduct

The employer could not prove that the forklift driver knew the cough mixture contained alcohol. The arbitrator accepted the employee’s version that he did not intentionally consume alcohol in breach of the policy.

2. No evidence of impairment

Although alcohol was detected, the employer failed to show that:

• the employee’s faculties were impaired; or
• he was incapable of performing his duties safely

In the absence of impairment or intentional wrongdoing, the CCMA concluded — and the Labour Court agreed — that dismissal was not a proportionate sanction.

The case might have been stronger if the policy had expressly required employees to check all medicines for alcohol content, but even then, fairness and proportionality would still have had to be established.

Are zero-tolerance alcohol policies pointless?

No. South African courts have upheld dismissals under zero-tolerance policies in appropriate cases — particularly where:

• impairment is proven;
• safety risks are real and immediate; or
• employees knowingly disregard clear rules

Every case turns on its own facts. The Labour Court in this matter was not deciding what it would have done, but whether the arbitrator’s decision was reasonable based on the evidence presented.

Different facts could easily have led to a different outcome.

The fairness principle cannot be avoided

The Labour Appeal Court has summarised the position clearly:

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.
The touchstone of the law of dismissal is fairness, and an employer cannot contract out of it.

This principle applies regardless of how firmly a policy is worded.

A warning to employees: no automatic escape

Employees should not treat the “cough mixture defence” as a guaranteed escape route. While it succeeded in this case, it will not always do so.

Employees are expected to:

• familiarise themselves with workplace policies;
• take reasonable care when using medication; and
• avoid placing themselves or others at risk

Ignorance will not always be an adequate defence.

Practical takeaways for employers

Employers should:

• review alcohol and substance abuse policies regularly
• ensure policies are clearly drafted and consistently applied
• train employees on the risks of alcohol in medicines and products
• assess each case individually before deciding on dismissal
• document evidence of impairment, risk, and proportionality

Given the complexity of employment law and the high cost of getting it wrong, early legal advice is essential.

Disclaimer
The information provided herein is for general information purposes only and should not be used or relied upon as legal or professional advice. No liability can be accepted for any errors or omissions, nor for any loss or damage arising from reliance on this information. Legal outcomes depend on the specific facts and applicable law. Always consult a qualified attorney for advice tailored to your circumstances. You may contact our attorneys here to discuss your specific matter.