Employers are often confused when the chairperson in a disciplinary hearing finds an employee not guilty of being under the influence of alcohol, despite the employee having tested positive for alcohol on a breathalyser.  Intoxication is defined as when a person is “affected by alcohol or drugs especially to the point where physical and mental control is markedly diminished.”

Case law

One of the first judgements determining the meaning of intoxication in South African labour law is found in Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552, where the Labour Appeal Court held that an employee will only be regarded as being “under the influence of alcohol” if they are no longer able to perform the tasks entrusted to them with the required competence. In this case, the employee was responsible for operating a 32-ton truck, and the court found that he would not have been able to perform this task with the same degree of skill, care, and concentration as a sober person. The court confirmed that the appropriate test is whether the employee’s competence to perform their duties has been impaired.

In the years following the judgment, many employers have relied on positive breathalyser results to substantiate charges of intoxication in the workplace. Breathalysers function by analysing an exhaled breath sample to determine the Breath Alcohol Concentration (BrAC)—reflecting the level of alcohol present in the individual’s breath. While this method has often been accepted as indicative of alcohol consumption, recent case law has clarified that breathalyser results alone are not sufficient to prove intoxication or that an employee was “under the influence.”

Case law

In Tosca Labs (Pty) Ltd v CCMA and Others [2012] 5 BLLR 529 (LC), the employee tested positive on a breathalyser. However, the employer was unable to prove that the employee was under the influence of alcohol to the extent that his ability to perform his duties was impaired. The employee had been performing his tasks without incident, and there was no evidence that his competence or conduct had been affected. The Commissioner accordingly found the dismissal to be substantively unfair, and the Labour Court upheld this decision on review.

Case law places a greater evidentiary burden on employers seeking to prove intoxication, as opposed to merely establishing that an employee tested positive for alcohol. These two charges are distinct in both their meaning and their legal requirements. A positive breathalyser result may be sufficient to substantiate a charge of “testing positive,” particularly where a clear (and valid) zero-tolerance policy is in place and no contradictory evidence is presented. However, in cases where an employee is charged with intoxication or being under the influence, a breathalyser alone will generally be insufficient. At a hearing the employer must lead additional evidence, such as behavioural indicators and witness testimony, to demonstrate that the employee’s ability to perform their duties was impaired.

A recent example of a challenge to the charge of “testing positive” arose in Samancor Chrome Ltd v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023), where the Labour Court held that breathalyser results do not constitute conclusive proof of intoxication. In this case, the employee, who had tested positive twice on breathalysers, which the employee disputed and then had a blood sample taken by a medical professional which was sent  to a laboratory. The result was negative. The employee was dismissed in terms of a zero-tolerance policy despite producing the negative blood test at the disciplinary hearing. The Court found the dismissal substantively unfair, emphasising that breathalyser tests are permissible as evidence in disciplinary hearings and arbitration proceedings, but their evidentiary value depends on corroborative evidence (e.g. blood test, or physical observation) to prove that someone is under the influence of alcohol.

It is therefore critical that employers carefully consider the nature of the charge before initiating disciplinary action. It’s best to obtain advice from the beginning with implementation of the relevant workplace policies and procedures to the classification of charges when dealing with disciplinary hearings.

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The South African labour market is rightly considered one of the most regulated in the world. Labour law sets strict requirements that employers must comply with. The most common laws that employers encounter on a daily basis include the following:

Labour Relations Act, Act 66 of 1995 as amended (LRA)

The LRA is one of the most important labour laws in South Africa. It regulates collective bargaining and provides protection against labour malpractices. This act also regulates trade unions and employers’ organisations and establishes key dispute resolution agencies such as the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils and labour courts.

This act further regulates all labour law processes that employers must comply with when it comes to the employer-employee relationship which, among other things, outlines the processes to bring the employment relationship to an end in a procedurally and substantively fair manner.

Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA)

The minimum statutory requirements on which employers and employees may contract that are not regulated by other sectoral determinations or collective agreements, are determined and enforced by the BCEA. Any contractual stipulations that are inconsistent with this legislation are invalid.

National Minimum Wage Act, Act 9 of 2018 as amended (NMWA)

With effect from 1 January 2019, employers are required to pay at least the national minimum wage. This wage amount is promulgated from time to time by the Minister of Employment and Labour. Strict compliance with this legislation is enforced through regular labour inspections of employers. In certain industries, the minimum wage is regulated by the applicable collective agreement for that industry and the employer must comply with it.

Bargaining Council Main Collective Agreement (CA)

A CA concluded in a bargaining council binds the parties to the bargaining council who are also parties to the CA. The CA sets the minimum conditions of employment for those employers and employees. A bargaining council may request the Minister of Employment and Labour in writing to extend a CA to any outside parties that fall within its registered scope. Once a CA has been extended by the Minister to non-parties, such an employer who is not a party to the CA will be obliged to comply with the provisions of the CA and to register with the relevant bargaining council.

Sectoral Determinations (SD)

A SD regulates the terms and conditions of employment in a particular sector where there is no centralised collective bargaining and which requires detailed and specific regulations.  Conditions in a SD may differ from those in the BCEA, but will rank superior.

Employment Equity Act, Act 55 of 1998 as amended (EEA)

The primary goal of this Act is to eliminate unfair discrimination in all workplaces. This act also places additional obligations on designated employers (employers with 50 or more employees) to ensure that affirmative action measures are implemented.

Occupational Health and Safety Act, Act 85 of 1993 as amended (OHSA)

This act requires the employer to create a healthy and safe workplace for all persons in the workplace. The act also regulates the health and safety of persons in connection with the use of plant and machinery.

Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993 as amended (COIDA)

COIDA provides for compensation for disability caused by occupational injuries or diseases sustained by employees in the course of their employment. Provision is further made for death resulting from such injuries or diseases, as well as for matters connected therewith.

Skills Development Act, Act 97 of 1998 as amended

The act aims to develop skills for the South African workforce by encouraging employers to promote skills development by using the workplace as an active learning environment and encouraging employees to participate in apprenticeships and other training programs. The act regulates standards for training and development by requiring employers (with an annual salary expenditure of more than R500 000.00) to contribute 1% of their payroll to the National Skills Fund.

Unemployment Insurance Act, Act 63 of 2001 as amended

The Unemployment Insurance Fund (“UIF”) provides relief to employees when they become unemployed as a result of dismissal or retrenchment, or are unable to work due to maternity leave, parental, adoption and commissioning parental leave, or prolonged illness. It also provides relief in some cases to the dependants of a deceased contributing employee. It is the employer’s responsibility to pay the contributions (2% of the employee’s salary), although both the employer and employee contribute 1%.

The obligations that labour law places on employers are non-negotiable and employers can be subject to serious fines, and even imprisonment, in cases of non-compliance. It is important that the employer is familiar with labour law and consistently follows the correct procedures with the necessary administrative support.

For more information on this and other labour laws that employers must comply with, contact our legal team for assistance.

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Chapter 2 of the Basic Conditions of Employment Act (BCEA) regulates working hours, including normal working hours and overtime. The maximum normal working hours allowed for employees earning less than the established income threshold amount in terms of section 9 of the BCEA is 45 hours per week. This means nine hours per day (excluding the lunch break) if the employee has a five day working week, and eight hours per day (excluding the lunch break) if the employee works more than five days per week.

This does not mean that the employee must necessarily work 45 hours per week. The number of normal working hours worked is a matter of contractual agreement between the employer and employee. Some employers work a 40 hour work week, and so on. The legal limit of 45 hours per week means that the employee may not work more than 45 hours per week of normal working hours. Lunch is unpaid time and is considered the employee’s own time, because they are not paid for lunch breaks.

As a result, an employee who works a five day workweek and receives a one hour lunch break per day will actually be at the workplace 50 hours per week (45 hours of normal working hours plus five hours for lunch breaks).

The lunch break must be given after five hours of continuous work. Under the BCEA, tea breaks will not qualify as a break in working hours. The legal lunch break is one hour, but can be shortened to 30 minutes by agreement between the employee and employer.

Overtime

The maximum permitted overtime is three hours on any day or 10 hours per week. Furthermore, the law states that an employer may not, under normal circumstances, allow/require an employee to work more than 12 hours on any day, including overtime. The law also establishes a minimum daily rest period of 12 continuous hours between shifts for employees who do not reside on the employer’s premises.

An employee who normally works nine hours a day and takes a one hour lunch break has already been at work for 10 hours and as such will not be able to work more than two hours of overtime per day, otherwise his shifts will be less than 12 hours apart.

Overtime is not mandatory and may only be worked per an agreement between the employer and employee. Please note that such an agreement is only valid for a period of 12 months and must be renewed annually. Failure to renew this agreement, or to enter into a new agreement, may result in employees being legally able to refuse to work overtime.

An employer must also give employees reasonable notice when they are going to be required to work overtime and as such may refuse to work overtime at short notice. However, an employee may not refuse to work overtime in terms of section 6(2) of the BCEA if the work to be done must be done immediately due to circumstances for which the employer could not reasonably have provided, and which cannot be done by employees during normal working hours.

Remuneration shall be at 1.5 (one and a half) times the employee’s normal rate of pay, except for work done on Sundays and public holidays. Any overtime worked on a Sunday shall be paid in accordance with the statutory provisions for Sundays and public holidays. Time off, calculated according to the same formula, may be given in lieu of pay, provided that this has been agreed to in writing with the employee.

This article is intended as general information for employers who fall under the scope of the Basic Conditions of Employment Act. To ensure that you as an employer are aware of the correct overtime applicable to your sector, or to obtain advice on this, contact the LWO on 086 110 1828.

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At the start of the employment relationship, even though the parties don’t know each other, a fiduciary duty is already in place that requires the employee to act in good faith and in the best interest of the employer.  It is important that the employer implements a written employment contract with each employee on the first day of employment – note that it can be argued that employment started during the interview process, as the employee has to be honest as to the qualifications and abilities the employee has.

A written employment contract creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward.  Take care to include a job description that specifies the employee’s duties and employer’s expectations.  The employee should also be aware of the consequences of not fulfilling these duties.

The employment relationship is a relationship of trust based on mutual benefits and respect.  As a business owner, the employer should always anticipate what can go wrong in the employment relationship, in order to mitigate risk and be best positioned going forward.  Poor work performance, conflict, misconduct, and a breach of trust can place this relationship in jeopardy and employers should take proactive steps to regulate the employment relationship and protect their rights. 

The following issues can cause a breakdown of trust in the employment relationship:

Conflict

The workplace is a very diverse environment in terms of culture, religion, beliefs, values, political views, frames of reference, work ethic, opinions, etc.  Everyone won’t always get along with each other and when conflict arises, the employer should step in and assist to resolve the conflict before it escalates, or starts to affect more employees and negatively impact on business operations.

Solution:  Have a consultation with the parties and assist to seek a solution best suited for all parties, to avoid further disturbances in the workplace.

Misconduct

Misconduct can be described as an employee’s failure to act according to the employer’s rules and policies, or failure to fulfil his/her duties.  In basic terms, misconduct is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions. Misconduct can take various forms, including theft, fraud, dishonesty, insubordination, absence from work without permission, etc.

Solution:  Every workplace must have a relevant disciplinary code and employees must be aware of it.  Be sure to keep an attendance register and minutes of the meeting when discussing the disciplinary code with the employees. The disciplinary code is essential in ensuring that there are clear rules in the workplace, with appropriate sanctions, that employees can follow. When these rules are violated, the employer can apply progressive discipline, or in cases of serious misconduct proceed directly with a disciplinary hearing.  It is vital to always follow the correct procedure, as in failing to do so can lead to dire consequences with a huge financial impact.  If there is a possibility of dismissal, a disciplinary hearing must be held prior to dismissing an employee. The employee should be given an opportunity to state their case during a fair disciplinary process. If the misconduct has led to the irreparable breakdown of the trust relationship, the employment relationship may be terminated.

Poor work performance

Poor work performance refers to an employee’s incapacity when an employee fails to reach and maintain the employer’s work performance standards in terms of quality and quantity.  All employment contracts imply that the employee undertakes to perform according to the reasonable, lawful and attainable work performance standards set by the employer. Should the employee fail in this duty, despite assistance to reach the required standard, the employee is said to be incapable and the employer has the right to dismiss him/her subject to following the correct procedure.

Solution:  Poor work performance involves a consultation process where the employee is informed of shortcomings and provided with training and guidance to achieve the desired outcome.  The employee is then monitored for a reasonable period of time and offered further training and guidance as needed.  Assess the employee’s improvement during a follow up consultation.  If the employee does not improve sufficiently, a formal disciplinary process can follow which can lead to dismissal.

It is important to maintain good and healthy working relationships. Boundaries should be set from the beginning of the employment relationship to avoid any uncertainties going forward. Keep the communication lines open for all parties to address any issues which may arise. Employers should take care to follow the correct procedures when taking disciplinary action or holding consultations.  Be sure to keep an attendance register and minutes of the consultations with the employee.

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The act of suspension is widely misunderstood by employers which is problematic in terms of any unfair labour practice.

Suspension can be divided into two categories:  precautionary suspension and punitive suspension.

Punitive suspension

Punitive suspension refers to when the employer imposes a sanction after finding the employee guilty of misconduct at a disciplinary hearing.

Precautionary suspension

Precautionary suspension is imposed on an employee before a disciplinary hearing date to facilitate the completion of the investigation and ensure the proceedings are conducted efficiently and without delay.  Any suspension given prior to a disciplinary hearing needs to be fair and cannot be used as a sanction against the employee, as the allegations of misconduct have not yet been proven in a fair disciplinary hearing process.

Precautionary suspension is generally used:

• if the employee can potentially interfere with witnesses or with the investigation into the alleged misconduct;
• when the employee’s presence on the premises prior to the disciplinary hearing may be disruptive to the workplace;
• when the employee’s presence may be a threat to his/her own safety or the safety of others;
• when the employee can potentially tamper with the evidence; and
• when there is a very serious offence which has caused a break in the trust relationship, such as theft or dishonesty, mainly as a precautionary step to prevent further loss or damage.

For precautionary suspension to be fair, legislation requires that:

• the employer’s relevant disciplinary code/policies are followed;
• the suspension should not be used to punish the employee;
• the employee should be informed of the reason(s) for and duration of the suspension; and most importantly
• the employee should be remunerated in full for the duration of the suspension.

The period of precautionary suspension is always payable to the employee.  The employee cannot be punished or prejudiced for possibly delaying the disciplinary process as such delays would always be at the employer’s cost.

Case study

The employee should be given a reasonable opportunity to give reasons why he/she should not be suspended, however the Constitutional Court confirmed that this is not always necessary – as in the case of Long v SA Breweries (Pty) Ltd (2019) 40ILJ 965 (CC). The court stated that due to the precautionary nature of a so called “precautionary suspension”, an employer is not obliged to provide an employee who receives a written notice of suspension with a chance to make representations before the suspension takes effect, unless a specific provision is made in the employer’s disciplinary code or workplace rules that requires it.

Employers should take note that our courts have also taken a grim view of suspending employees for long periods of time without justifiable reasons. A classic example of this was in the case of Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC), where the employee was kept on suspension for approximately nine months.  The court held that employees may not be kept indefinitely on suspension, even with full pay, pending disciplinary action.

To mitigate risk, employers are encouraged to ensure that any suspension which is given, aligns with the procedural and substantive requirements as set out in both legislation and case law. Failure to adhere to these requirements or principles could incur a risk of referral as well as a compensation order by the Commission for Conciliation, Arbitration and Mediation (CCMA) or by the Labour Court.

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The chargesheet is the first formal step before a disciplinary hearing after the investigation has been concluded. Drafted by the employer or their HR official, this document, also known as a notice of disciplinary hearing, informs the employee of the pending hearing and its related details. It must balance the employer’s need to address workplace misconduct with the employee’s right to a fair and transparent process. Under the Labour Relations Act, Act 66 of 1995 (LRA) and related case law, employers must ensure that chargesheets are clear, fair and based on solid evidence.

List the correct charges

 The chargesheet should accurately define what the employee is accused of. Instead of using vague terms like “bad behaviour” or “insubordination”, detail exactly what occurred. For example, if an employee did not follow a direct instruction, the chargesheet should detail when it happened, what the instruction was and how the employee did not comply. This helps ensure the employee understands the allegations and can adequately respond.

It’s also important to consider the seriousness of the misconduct and the employer’s disciplinary code. Not every misstep leads to a hearing. For instance, gross misconduct – theft, fraud or violence – may warrant dismissal for a first offence, while minor or isolated incidents might only call for a written warning unless repeated.

Categories and key considerations

When deciding on the charges and how to group them, employers should consider several important factors:

• Employer’s policy: The charges should line up with the employer’s established disciplinary code or rules. If similar cases in the past were handled in a specific way, following that pattern helps keep things fair and consistent, as consistency is important to help avoid claims of favouritism or discrimination.

• Clarity and specificity: The language used in the chargesheet should be simple and clear. Avoid complicated legal jargon that might confuse the employee. Each charge should focus on a single event or failure so that it’s easier for everyone to understand what is being discussed.

• Factual evidence: Every charge must be backed up by clear, objective evidence. This might include for example documents, statements, emails, photos and witness testimony. Having solid proof helps ensure that the charges are based on real events rather than assumptions or hearsay.

• Severity and impact: Consider how the misconduct affected the employer and workplace. Did it disrupt the work environment? Did it harm other employees or the employer’s reputation? Minor mistakes might only warrant a warning, but more serious misconduct that affects the entire team or business could require harsher measures.

A practical example

Consider the following incident:  On 30 January 2025 Mr X publicly yelled, swore and insulted his manager, Manager Y, in front of other staff.

A chargesheet for this incident might read:  “Gross insolence – On 30 January 2025 you were involved in an incident where you yelled at and insulted Manager Y in front of other employees by shouting the following graphic words: “(graphic words)”. Your actions were extremely inappropriate and disrespectful and undermined his/her managerial authority among staff and personally offended Manager Y, constituting a serious breach of our disciplinary code.”

Procedural fairness

A crucial aspect of the chargesheet is ensuring procedural fairness. The employee must be given a clear explanation of the allegations and sufficient time to prepare a response and ultimately give their version of events at the disciplinary hearing. If this process is not followed, it can lead to disputes or legal challenges at the Commission for Conciliation, Mediation and Arbitration (CCMA).

Drafting a chargesheet involves careful consideration of the facts, the seriousness of the misconduct and adherence to both legal standards and the employer’s policy. By listing the correct charges and ensuring that the document is clear and fair, employers can protect themselves legally while also promoting a transparent and fair working environment.

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