Can You Dismiss Someone for Being Under the Influence on the First Offence?
With December just around the corner, workplaces are busier than ever – and with the festive season approaching, the issue of employees being under the influence at work becomes particularly relevant. We all know that alcohol and drugs have no place at work – especially in jobs where safety is a concern. But the question that keeps popping up at the CCMA and Labour Court is this: if an employee shows up under the influence for the very first time, can you dismiss them on the spot?
Recent case law is making it clear: the answer is not necessarily.
Why dismissal isn’t always fair on the first offence
The Labour Relations Act gives us a starting point. It says that dismissal should usually be reserved for serious cases – not for a first slip-up. Unless the behaviour is so bad that it destroys the working and trust relationship, employers are expected to try a lesser sanction first, like a warning or counselling.
So even if an employee tests positive for alcohol or cannabis, that doesn’t automatically mean they should lose their job. What really matters is whether they were impaired and whether their job carries serious safety risks.
What the courts have been saying
A few recent cases show the direction things are moving:
- Air Products v Matee (2021): An employee was fired under a “zero-tolerance” policy after testing positive. The Court said the dismissal was too harsh because there wasn’t proof that the employee couldn’t do his job properly.
- Signature Cosmetics case: An employee had smoked cannabis the night before work and still tested positive, but there was no evidence he was impaired at work. He got reinstated with a warning instead of losing his job.
- Older cases like Tankers Services: The principle has long been that “under the influence” means you can’t perform your duties safely or properly – not just that you’ve had a drink or that you test positive.
But what about zero-tolerance policies?
A lot of companies have “zero-tolerance” rules when it comes to alcohol or drugs, and that’s fine, especially in high-risk environments where one mistake could be fatal. But here’s the catch: even with such a policy, commissioners and judges will still ask: Was dismissal the fairest option in the circumstances?
If the job isn’t safety-critical, if the employee was not obviously impaired, or if it’s their first offence, the CCMA may well decide that a warning was the better option.
When dismissal can be justified on a first offence
Of course, there are situations where dismissal on a first offence makes sense and will likely hold up:
- The employee’s role involves safety-sensitive work (drivers, machine operators, etc.).
- The employee was clearly intoxicated and couldn’t function.
- There is a real risk to the business, clients, or other staff.
- Drinking and smoking while on duty and still performing work.
Practical takeaways for employers
- Don’t rely on a test alone. A breathalyser or drug test should be backed up by observations of impairment (slurred speech, unsteady behaviour, inability to perform tasks).
- Make sure your policy is clear and communicated. Employees must know exactly what “under the influence” means in your workplace.
- Be consistent. If you let one person off with a warning, you can’t fire someone else for the same thing, unless the circumstances are very different.
- Think progressive discipline. Unless the job is high-risk, a warning is usually the better first step.
Final word
The takeaway from recent rulings is simple: being under the influence at work is serious – but it doesn’t always justify instant dismissal on a first offence. Employers need to weigh the facts, the level of risk, and the fairness of the sanction before making that call.
A client of ours, who is a Mine, is giving Final Written Warnings for first offences, while having a Zero Tolerance Policy. This signals a clear shift, that HR and IR managers know this has become a risky dismissal at the CCMA or Bargaining Council. Rather have extra paperwork which can be used at Arbitration, as then a “slip up” cannot be argued, but rather deviance of the rules, after you have been warned.
As always, please contact us should you seek professional advice regarding this or any other HR and IR matters and issues.
Off The Desk of
Angelique Hefer
HR and Payroll Consultant.