Cases listed under subject matter
Alcohol and drugs
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Arangie and Abedare Cables (2007) 28 ILJ 249 (CCMA)
Where a rule obliges an employee to take an alcohol test or leave the premises, the refusal to do so will constitute gross insubordination justifying dismissal.
Black Mountain v CCMA & others [2005] 1 BLLR 0001 (LC)
If the employer's disciplinary code and policy provide for a particular approach it will generally be considered unfair to follow a different approach without legitimate justification.
Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20; JS 926/20) [2022] ZALCJHB 161 (1 June 2022)
Drug intoxication is defined legally through testingand proof of impairment by cannabis is not required.
Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20; JS 926/20) [2022] ZALCJHB 161 (1 June 2022)
An Alcohol and Substance Policy that applies to all employees, which they are aware of and which has been consistently applied, does not constitute unfair discrimination.
Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12 (23 April 2024)
The use of a blood test alone, without proof of impairment, is a violation of an employee's dignity and privacy.
Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12 (23 April 2024)
A mere positive test for cannabis does not address the sobriety of the user or indicate whether they are impaired from carrying out their duties.
Exactics-Pet (Pty) Ltd v Patelia NO & others (2006) 27 ILJ 1126 (LC)
In a disciplinary hearing an employer can establish intoxication both by observations of an employee’s behaviour and a breathalyzer test.
Goba and Clubland (2002) 23 ILJ 1300 (CCMA)
As a CCMA commissioner may not be prepared to take judicial notice of (ie accept without proof) the correctness of a breathalyzer reading, employers may have to lead evidence about it.
Jansen and Pressure Concepts (2005) 26 ILJ 2064 (BCA)
The failure to reasonably accommodate an employee with an alcohol problem prior to dismissal may render the dismissal unfair.
Marasi v Petroleum Oil and Gas Corporation of South Africa (C219/2020) [2023] ZALCCT 34 (27 June 2023)
Once a job requirement is determined to be inherent, then as a matter of law, it is not unfair discrimination for an employer to insist on employees meeting the requirement.
Minister of Justice and Constitutional Development and Others v Prince (CCT108/17) [2018] ZACC 30 (18 September 2018)
Personal use or cultivation of cannabis/dagga by an adult for personal consumption in private is consistent with the right to privacy in the Constitution.
Mthembu and others / NCT Durban Wood Chips [2019] 4 BALR 369 CCMA
Whilst the Constitutional Court had declared private use of cannabis legal, employers are still entitled to discipline employees using cannabis or under its influence during working hours.
Naik v Telkom SA (2000) 21 ILJ 1266 (CCMA)
Alcoholism is a form of incapacity and must be treated as such, rather than as misconduct.
NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022)
Tests for cannabis do not demonstrate the degree of impairment of the employee's ability to perform duties. Proof of impairment is not required (as with alcohol) as it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature.
Numsa on behalf of Williams and Robertson & Caine (Pty) Ltd (2005) 26 ILJ 2074 (BC)
The state of being ‘under the influence of alcohol’ exists when an employee is no longer able to perform the tasks with the skill expected of a sober person.
Pikitup (Soc) Limited v SAMWU and Others (JA82/13) [2013] ZALAC 33; [2014] 3 BLLR 217 (LAC); (2014) 35 ILJ 983 (LAC) (5 December 2013)
The right to privacy means an employee's consent is required from the employee before drug and alcohol testing by urine, blood or breath sample.
Portnet (Cape Town) and SATAWU on behalf of Lesch (2002) 23 ILJ 1675 (ARB)
Where an employee with an alcohol problem refuses to co-operate and the employer has taken all reasonable steps to assist the employee, dismissal for misconduct, rather than incapacity, is justified.
Rankeng / Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 (CCMA)
An employer needs evidence to prove a charge of being 'under the influence' of dagga/cannabis, and that performance was impaired. A positive drug test is insufficient.
SALSTAFF/AIWU on behalf of Govender and SA Airways (2001) 22 ILJ 2366 (ARB)
Dismissal may be justified where an employee fails to disclose at the application stage for a job a history of drug dependency.
Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023)
A breathalyzer test is capable of producing false positive results in certain circumstances and a blood sample tested in laboratory conditions is more reliable.
Scrader Automotive (Pty) Ltd v MIBC (2008 P488/05 (LC))
The fact that an employee is under the influence of alcohol in the workplace does not mean that the only appropriate sanction in every case is dismissal. Each case must be decided on its own merits.
SGB Cape Octorex (PTY) Ltd v Metal and Engineering Industries Bargaining Council and Others (JA 90/2021) [2022] ZALAC 118; (2023) 44 ILJ 179 (LAC); [2023] 2 BLLR 125 (LAC) (18 October 2022)
An employer is entitled to set its own standards and determine the sanction with which non-compliance with the standard will be visited to enforce discipline in its workplace.
South African Breweries Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 665/2011) [2012] ZALCCT 17 (24 May 2012)
Lists the factors to be applied in determining whether a dismissal was fair. An arbitrator's role is to decide this. The commissioner's own sense of fairness must prevail. There can be no deference to the employer.
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (C24/2011) [2012] ZALCCT 18 (6 June 2012)
In applying a zero tolerance rule, consideration must be given to the specific circumstances of the case and the employee's circumstances.
Transnet Freight Rail v Transnet Bargaining Council and others (LC Case no.: C644/2009 Date of judgment: 4 March 2011)
An employee who is not an alcoholic, will be guilty of misconduct and not incapacity when under the influence. The applicable law relates to misconduct, not incapacity.