Alcohol at Work: The Cough Mixture Defence

November 2025 | Employment and Labour Law

“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 season of goodwill, holidays, celebrations, and year-end functions is upon us once again. And with it comes a timely reminder to employers that, while their “zero tolerance” alcohol-at-work policies may be key to maintaining health and safety in the workplace, they have their limits when it comes to disciplining offenders.

Two teaspoons of cough mixture

A forklift driver with an impeccable six-year record of service at a beverage manufacturer arrived an hour late for work, then failed a routine breathalyser test – routine in that all employees knew they would be tested on entering and leaving the factory.

He was adamant that he hadn’t been drinking but explained that he’d had some of his neighbour’s cough mixture the night before and another two teaspoons that morning, without knowing that it contained alcohol as he hadn’t read the label.

Critically, he didn’t smell of alcohol and displayed no visible signs of impairment or of being intoxicated.

Nevertheless, he was dismissed for gross misconduct on the grounds that he had breached his employer’s Alcohol, Drug and Substance Abuse Policy, which he knew about and which prohibits employees from having any intoxicating substances in their bloodstream during working hours. It further forbids them from using any alcohol during work or within six hours of the start of their shift. What’s more, it includes a zero-tolerance clause to the effect that no alcohol in an employee’s blood is permitted, and that higher levels of alcohol will automatically lead to a disciplinary hearing and possible dismissal. 

The employee disputed his dismissal at the CCMA (Commission for Conciliation, Mediation and Arbitration) which found it to be substantively unfair and ordered his reinstatement with an award of R24,600 in lieu of arrear salary. This despite the employer’s explanation that a zero-tolerance approach was required because an employee working on machinery while under the influence posed a serious occupational and health risk.

The employer took the CCMA’s reinstatement award on review to the Labour Court, but it was unable to convince the Court that dismissal was justified. Its failure to do so holds valuable lessons for all employers and employees.

What must an employer prove to justify dismissal?

As an employer, your duty to ensure health and safety in the workplace may well call for a zero-tolerance policy against substance abuse, particularly in safety-sensitive situations like employees operating heavy machinery (the heavy-duty forklift in this case being a good example).

But a zero-tolerance policy “will only be accepted where the circumstances necessitate its implementation”. Even then, it doesn’t mean that you can automatically dismiss an employee contravening it. You have to go further.

You need to treat each case on its own merits, and be ready to justify whatever sanction you decide to impose by proving that:

• There was a workplace rule in place.
• The employee was aware of it. Ideally, you should educate staff on the importance of the policy with specific reference to the dangers of alcohol and other banned substances being present in food products, cooked foods, medicines and the like.
• The employee wilfully broke the rule.
• The nature and responsibilities of the job, the significance of the rule, the employee’s disciplinary record, the process of progressive discipline, and the potential harm caused by the misconduct (fitness for duty and threats to workplace safety would be major factors here) are all sufficient to show that dismissal is “appropriate and proportional to the offence that was committed”.

The employer’s challenge in this case was that it couldn’t prove that the forklift driver knew there was alcohol in the cough mixture, leading the arbitrator to accept his version that he had not knowingly breached the zero-tolerance rule. It was also unable to prove that the driver’s faculties had been impaired, an important factor in the arbitrator’s conclusion that dismissal was not an appropriate sanction here.

No doubt the employer’s case would have been stronger had its zero-tolerance rule specifically required employees to check for alcohol content in all medicines used – but even then, it would still have had to show overall fairness and proportionality.

Are zero-tolerance policies pointless?

Not at all. Our labour courts have previously upheld dismissals in similar cases. Every case is different, with each matter being a balancing act between the employer’s duty to ensure safety in the workplace on the one hand, and its duty to act fairly in enforcing its disciplinary policies on the other.

Bear in mind also that this Court was not “re-trying” the matter but only assessing whether or not the arbitrator’s decision could be considered reasonable in light of all the facts and evidence presented. Another arbitrator presented with a different set of facts could well have decided in the employer’s favour.

The fairness factor

Review your workplace policies and procedures to ensure that they are as tightly worded and as justifiable as possible, and bear in mind that, as the Labour Appeal Court has summarised the legal position, (emphasis supplied): “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.”

Employees: This is no “get out of jail free” card

One wonders how often the “cough mixture” defence has been tried both by employees breathalysed at work, and by late-night jollers pulled over at police roadblocks. Of course, it could get you off the hook, just as it did our forklift driver here, but don’t take a chance on it. And don’t unwittingly break the rules – check what’s in your medicines before you take them!

Our employment laws are complex and the penalties for getting them wrong substantial, so call us if you need any help in reviewing or enforcing your workplace policies.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Parental Leave: Out With the Old, in With the New

October 2025 | Employment and Labour Law

“Raising kids is part joy and part guerilla warfare.” (Ed Asner, actor with a great sense of humour!)

A game-changing judgment from our Constitutional Court sets out new rules for parental leave.

The joy of becoming parents, and a father’s leave dilemma

The birth of a couple’s first child presented them with both a bundle of joy and a practical dilemma. Dad wanted to be the baby’s primary caregiver while his wife carried on running her two businesses, so he asked his employer for four months’ parental leave. “Sorry,” said his boss, “the law only allows you ten days”. In the end he had to take six months’ unpaid leave – which came with some unhappy financial and career consequences.

Off to the High Court he went. That Court’s declaration of invalidity of the relevant provisions in the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Fund (UIF) Act has now been confirmed by the Constitutional Court – with some important modifications.

Let’s start with a quick look at how the current wording of the two Acts creates an inherent inequality between parents.

Out with the old: Different rules for mums and dads

In the far off “bad old days”, many expectant mothers had no job security or entitlement to maternity leave. That gradually changed for the better over many years, but even after a general entitlement to maternity leave was introduced it was, as the name suggests, available to women only. Then in 2020 came the brand-new and widely welcomed concept of “parental leave”, which brought fathers (and other non-birth parents) into the fold.

It was ground-breaking at the time but still not perfect, in that while biological birth mothers were entitled to “maternity leave” of at least four consecutive months, fathers (and other non-birth parents) got “parental leave” of only ten consecutive days. Adoptive leave and commissioning (surrogacy) leave was ten weeks for one parent but only ten days for the other. The UIF Act inevitably mirrored these inequalities.

In with the new: Parity for parents

The High Court found these discrepancies to be unconstitutional, and the Constitutional Court has now agreed. It’s given Parliament thirty six months to sort out the invalid provisions (new legislation is reportedly already in the pipeline), and in the interim the following changes apply:

• One parent employed: Where only one parent is employed, or in the case of a single parent, that parent gets the full four consecutive months’ leave. If the parent is an expectant mother, she can start her leave up to 4 weeks pre-birth (or earlier if medically certified). Otherwise, it starts on the day of birth.
• Both parents employed: Where both parents are employed, they get a total of four months and ten days of parental leave: the sum of what used to be the mother’s four months and what used to be the father’s ten days. This total can be shared between them as they agree, taking it consecutively (one after the other) or concurrently (together), or a mix of consecutive and concurrent. But however they split it, each must take their portion of leave in one single sequence of days. If they can’t agree on the leave split, it must be as close as possible to 50/50. Shared leave must be completed within the four-month period.
• Compulsory periods: There are no changes to the compulsory no-work period for the birth mother – a six-week recovery period after birth during which she may not work unless medically cleared. In the event of either a miscarriage during the third trimester, or a stillbirth, the birth mother must get the same six-week recovery period. 
• Adoptive leave and commissioning (surrogacy) leave: The same equal splits now apply to all parents – natural, adoptive and commissioning. A provision limiting adoptive leave to children under two years old was declared invalid and unconstitutional, but remains in place for now, with the Court leaving Parliament to decide on an appropriate age limit. 
• Other “parties to a parental relationship”: Leave in the shared pool applies only to “parties to a parental relationship”, defined as people who have assumed parental rights and responsibilities under the Children’s Act. 
• Notice to employer: Employed parents must still give their employers at least four weeks’ notice (some sections refer to “one month” just to confuse the issue!) of their intention to take leave. If that’s not practical, notice must be given “as soon as reasonably practicable”.  

Are you entitled to paid leave, and what about UIF?

Although you now have extended job security protection, you are still not entitled to paid parental leave unless your employment contract provides for it (common in larger corporates), or if a company policy or a collective agreement provides for it.

Better news is that the UIF allows you to claim for maternity and parental leave benefits, but currently still with restrictions mirroring the BCEA’s. The Court declared the relevant sections of the UIF Act invalid but again left it to Parliament to sort out, so it seems that nothing changes there for now.

An important note for employers

Review all your employment contracts, company policies and procedures to ensure compliance with these new rules. Communicate them to your employees to ensure there are no misunderstandings and no unrealistic expectations – not all the media reports and online articles on this new development are accurate!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Honesty at Work: A 50c Coin Costs a Bank Teller Her Job

August 2025 | Employment and Labour Law

“There’s no trust, no faith, no honesty in men.” (William Shakespeare, in Romeo and Juliet)

A recent Labour Court decision is a stark reminder to employees that an employment relationship is founded on trust, and that any breach of that trust could justify dismissal.

Pocketing a 50c coin to balance her till

The responsibilities of a bank teller included “balancing cash daily, reporting differences, as well as maintaining effective security controls, including maintaining a high level of honesty, integrity and ethical standards.”

Her clean record over the four years of her employment ended abruptly when a monthly surprise check of the cash balance in her till revealed a discrepancy in the form of a bag of R1 coins totalling R20, unaccounted for and therefore in violation of banking rules and procedures.

The resulting investigation revealed, as recorded on CCTV, the teller’s various failed attempts at balancing her till, which she had ultimately succeeded in doing only by pocketing a 50c coin from the till.

A subsequent disciplinary enquiry found her guilty on charges of misconduct in the form of dishonesty, falsification of balancing records and misappropriation of funds from her till. She referred her dismissal case to the CCMA (Commission for Conciliation, Mediation and Arbitration), which refused her application.

In finding her dismissal to have been fair, the arbitrator rejected both the teller’s claims that her till discrepancies resulted from her ill health, and her denial of taking the 50c to manipulate the system (the CCTV record was, it seems, crystal clear on that point). The court also remarked on her contradictory statements as to the “miraculous” bag of R1 coins.

Critically, the teller had been trained in her duties and was well aware of what was expected of her in line with the bank’s Code of Ethics. Moreover, the bank’s Disciplinary Code provides that falsification of bank records is a dismissible offence as a destroyer of the employer-employee trust relationship.

Undaunted, the teller took the CCMA’s award on review to the Labour Court, which made short work of confirming her dismissal.

It’s the breach of trust that counts, not the amount involved

As our courts have confirmed many times, the employer-employee relationship requires an employee to act honestly and in good faith. The trust which the employer places in the employee underlies their whole relationship, and any breach of that trust risks dismissal.

Even an apparently minor act of dishonesty can justify dismissal if it has resulted in a breakdown of trust that makes continued employment intolerable. The final decision of whether or not dismissal will be appropriate for a particular act of misconduct will depend on all the circumstances.

4 practical tips for employers

For employers, preparation is key in ensuring that you are able to dismiss a dishonest employee without falling foul of our employment laws. Start with the basics:

1. Your employment contracts and codes are critical: As we saw in this case, the bank’s strictly worded Code of Ethics and Disciplinary Code were central to proving the fairness of the dismissal. Your employment contracts should incorporate reference to zero-tolerance policies that leave employees no wiggle room when it comes to understanding that any act of theft or dishonesty, no matter how minor, will justify dismissal. Incorporate reference also to the monitoring and checking processes you will apply – it was the “surprise monthly till check” that cooked this teller’s goose.

   Every workplace will have its own unique requirements in this regard, so contracts and codes tailored to your circumstances are vital.

2. Training is essential: As we again saw in this case, a deciding factor in the Court’s decision was the fact that the teller had received adequate training in her duties and so couldn’t claim ignorance of the requirements that she balance her till, report discrepancies, act honestly, etc.
3. Proof is key: The CCTV footage of the teller pocking money from her till was critical in proving that she deliberately flouted the rules and stole from her till. Whatever monitoring devices and processes you may have in place (and do remember to ask us how you can use things like CCTV monitoring without being accused of an unfair labour practice!), make sure to collate and preserve it as soon as any incident of misconduct comes to light. You might have to retain it for a long time (nearly four years so far in this case).
4. Your disciplinary process must also be fair: Remember that proving “substantive fairness” (a fair and lawful reason for dismissal) is only one part of the equation. You must also be able to show that all your disciplinary processes are “procedurally fair” (i.e. that a fair process was followed).

As always with our employment laws, the requirements are complex and the costs of getting them wrong are high, so don’t hesitate to ask us for advice and help every step of the way.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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What’s the Normal Retirement Age? It’s Complicated, as The Plumber’s Tale Proves

June 2025 | Employment and Labour Law

“When cognitive capacities are the focus, the 70s are the new 50s.” (IMF)

Fake news articles suggesting that South Africa was implementing a new standard retirement age policy, supposedly from 30 May this year, recently went viral on social media. Convincingly structured to look realistic (AI’s dark hand there?), the articles suggested that 65 is the new universal standard retirement age for all employees across all sectors.

Complete hogwash. 

What the law actually says

• Age discrimination is “automatically unfair”, and any employer found to be guilty of it by unlawfully forcing an employee to retire early faces a compensation order of up to 24 months’ remuneration (double the normal award for a run-of-the-mill unfair dismissal), re-instatement or re-employment. 
• There is, however, an escape clause there for employers: “A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.”
• Even where a dismissal itself is fair, you must still follow a fair process in implementing it – more on that below.

It’s an important topic, with increasing numbers of employees wanting to (or needing to) work into their 70s. A recent Labour Court ruling showing those principles in action is well worth taking note of.

The plumber forced to retire at 60

An artisan plumber with 12 years of service had his employment terminated when he turned 60.

He asked the Labour Court to declare his dismissal automatically unfair as other employees had been allowed to work until they were 65. What’s more, he denied ever agreeing to retire at 60.

The employer countered that it had a two-tier retirement policy which obliged employees with more physically demanding jobs (site workers such as artisan plumbers) to retire at 60 whilst supervisory and administrative personnel (such as foremen and office staff) only had to retire at 65. 

On the facts, the Court declared the dismissal to have been fair, finding that the evidence pointed to the employee being subject to a retirement age of 60 because:

• The employer’s retirement policy was in line with the rules of the applicable Building Industry Pension Scheme. 
• Although no signed copy of his full employment contract could be found, the employer did produce a standard annexure to such a contract, confirming retirement at 60 and “probably” signed by him (he denied signing it but agreed the signature looked like his).
• A number of his fellow plumbers had also been retired at 60 (he attended their retirement functions), and other cases of retirement at age 65 cited by him related to employees in the “65 tier” – that is in supervisory or administrative positions.
• Another plumber’s contract was produced, with the retirement provision in place.

Bottom line: the employee hadn’t proved that his retirement at the applicable retirement age of 60 was an automatically unfair dismissal, and the Court held his dismissal to be fair.

How to ensure that an age-related dismissal is fair

First prize is to specify an agreed retirement age in all your employment contracts, ideally from day one. If you want to add a retirement clause later, or to change anything about an existing clause, be sure to do so by negotiation and agreement, not unilaterally. And be sure to keep the original, fully-signed contract safe and accessible (unlike the employer in this case who had to rely on a scan of just the annexure to the contract).

Alternatively, be ready to prove that there is a “normal or agreed retirement age” for employees employed in the same capacity. 

The dismissal must be genuinely based on the employee having reached retirement age and cannot, for example, be a disguised retrenchment or a dismissal for some other reason. 

It’s crucial that you follow a fair process. Open communication, reasonable notice, and applying the rules consistently to all employees could be critical here.

Every case will be different, so ask us for advice specific to your situation. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

Restraint of Trade: Fatal Vagueness Means no Father Christmas to the Rescue

May 2025 | Employment and Labour Law

“The legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.” (Quoted in the judgment below)

We all want loyal, competent staff who remain motivated to stay with us in the long term, but the reality is that a degree of employee churn is always inevitable. 

Imagine then this scenario – a key employee (someone senior, a specialist, or perhaps even a partner or director) is fired or leaves you. They take with them intimate knowledge of your business. They know all your trade secrets, your pricing processes, your marketing strategies, and all your trade connections. Plus, they’ve built up client relationships and credibility in your industry while employed by you. 

If they now decide to start up their own business in opposition to you, or if they take their insider knowledge to your competitors, you have a real problem. 

That’s why it’s essential to consider, right up front when you’re hiring someone and drawing up their employment contract, whether you need to protect your business from this sort of unfair competition. That’s where the tried-and-tested restraint of trade clause comes into play. It’s as easy as including one in your employment contract, and making sure that your new hire is fully on board with it. Or is it?

The basic requirements for legal validity

As a starting point, our courts are cautious about curbing anyone’s constitutional right to be economically active and to earn a living. 

So, while we are all generally held to the agreements we make, and while restraint clauses have long been recognised in our law as a legitimate way for businesses to protect their interests from unfair competition, our courts are unlikely to enforce restraints unless they are:

• Reasonable: You cannot impose an unreasonable restriction on your former employee’s freedom to trade or to work. Go too wide on time period, geographic area or scope, and your clause could be held wholly or partially void.
• Protective of a legitimate business interest: You must have a real commercial interest in imposing the restraint, you can’t use it just to block competition.
• Not contrary to public policy: There must be no other aspect of public policy weighing against the clause.

Each case will be judged on its own facts and merits, with the court balancing your rights against those of your former employee in a bid to ensure fairness to both of you. 

As a starting point, make sure that your clause isn’t “void for vagueness”, or you could end up in the same position as the employer we discuss below.

Too vague to enforce, and no Father Christmas to the rescue

An employer, providing physiotherapy services to two major hospitals in the Umhlanga area of KwaZulu-Natal, employed a senior physiotherapist in January 2023. Eight months later she resigned.

The restraint of trade clause in her agreement was a particularly terse one. Headed “15. Trade Restriction”, it read simply: “2 year 8km restriction in event of termination / expiry of Contract.”

When the employer tried to enforce this clause, the High Court refused, pointing out that it was “lacking in substance” and contained no indication of:

• A definite commencement date for the two-year period
• What the “8 km restriction” referred to
• What exactly was restricted
• What interests it sought to protect

What’s more, it contained no mention of the two particular private hospitals which the ex-employee was not to practice at. The Court refused the employer’s request to “read in” more wording to the clause to remedy its vagueness and lack of detail, quoting from another High Court decision: “the legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.”

It also warned against the trend for smaller businesses to cut corners by going the “DIY contract” route: “SMME businesses are reluctant to seek advice from attorneys, and less so to employ attorneys to prepare important legal agreements. This pattern, fuelled undoubtedly by the rising cost of legal charges, often results in unforeseen circumstances by the time the matter reaches a litigious stage”. 

That’s putting it mildly – defective restraint clauses like this one literally aren’t worth the paper they’re written on. A properly drawn clause is essential, and we’re here to help.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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