By: Rhys Evans - Managing Director at ALCO-Safe

For many South African businesses, workplace alcohol policies are designed with the best intentions: to protect safety, maintain productivity, and reduce risk. But when these policies are not backed by proper procedures and reliable evidence, they can quickly become a liability.

A recent Labour Court ruling has brought this into sharp focus. In the case of Unilec SA (Pty) Ltd v Mahlo and Others, an employee dismissed for allegedly being under the influence of alcohol successfully challenged the decision at the Commission for Conciliation, Mediation and Arbitration (CCMA) and again in court. The outcome came down to one critical issue: the employer could not prove its case.

This is where many organisations get it wrong.

When suspicion is not enough

In high-risk environments, supervisors are trained to identify signs of intoxication. Slurred speech, unsteady movement, or the smell of alcohol may raise concerns in the workplace. But in a legal context, these observations carry little weight on their own, and the Labour Court has made it clear that assumptions do not meet the evidentiary standard required to justify dismissal.

In this case, the employer relied largely on allegation rather than proof. No verified test results were presented during the CCMA proceedings and attempts to introduce additional evidence later at the Labour Court stage were rejected. As the judge noted, a case cannot be strengthened with evidence that was never formally submitted in the first place. The dismissal was found to be both procedurally and substantively unfair. 

The growing risk for employers

This is not an isolated incident. Across South Africa, more companies are finding themselves defending alcohol-related disciplinary actions at the CCMA or in court.

There are two main reasons. The first is procedural failure. Organisations either lack a clearly defined substance abuse policy or fail to follow their own procedures consistently. The second is evidentiary weakness. Without objective, verifiable proof of intoxication, employers are left relying on subjective observations that rarely stand up under scrutiny. Even where there are legitimate safety concerns, the inability to demonstrate a fair and consistent process can lead to costly disputes, reinstatement orders, and reputational damage.

What defensible action looks like

A defensible alcohol policy rests on three pillars: clarity, consistency, and evidence. It begins with a clearly documented policy outlining acceptable behaviour, testing protocols, and disciplinary procedures, all of which must be communicated to employees and supported by a structured process that is applied consistently.

Most importantly, the policy must be backed by reliable testing. Best practice typically starts with a screening test using a calibrated breathalyzer. If the employee fails, this should be followed by a confirmation process. This includes a waiting period to eliminate residual mouth alcohol, followed by at least one, and ideally two, confirmation tests.

Each step must be properly documented. Time stamps, test results, and adherence to procedure form part of the evidentiary record. Without this level of rigour, even justified disciplinary action can unravel.

Why the right tools matter

Not all breathalyzers are equal, and in a legal dispute, the reliability of the device used can be as important as the result itself. Evidentiary-grade breathalyzers, supported by valid calibration certificates, provide the level of accuracy required for disciplinary processes. 

They turn testing into credible evidence. Equally important is how these tools are used, as even the best device can be undermined by poor handling, lack of training, or inconsistent application. This is why alcohol testing needs to be viewed as a system, not just a procedure.

The unavoidable truth

For many organisations, managing workplace alcohol risk is not a core competency. Without the right expertise, drafting policies, procedures, and testing frameworks internally often leads to gaps. Partnering with an experienced provider can help close these gaps. From policy development and staff training to calibration and compliance support, a specialist approach ensures that drug and alcohol testing in the workplace align with legal expectations. 

As recent case law shows, even small procedural oversights can escalate into significant legal challenges. Organisations that implement structured, defensible systems are far better positioned to withstand scrutiny and avoid costly disputes. 

In these situations, the question is not what an employer believed, but what they can prove. Without credible evidence and consistent procedures, even justified concerns will not survive legal scrutiny.