Dismissed for energy drink? Court reinstates worker after unfair dismissal ruling

The Labour Court rules in favour of an employee dismissed over a low alcohol reading. He claimed he simply drank an energy drink on his way to work. A warehouse operator, dismissed after testing positive for alcohol during a workplace test, insisted that his positive result was due to consuming a Bioplus energy drink on his way to work.

In contrast, his employer claimed that he smelled of alcohol. Mike Mwale was employed with Cipla Distribution Gateway, which has a zero tolerance for the use of alcohol at work. He tested positive for alcohol following a breathalyser test, which recorded a reading of 0.019%.

Mwale was subsequently charged and dismissed for testing positive for alcohol/drugs or being in possession of alcohol during working hours or while on duty.The CCMA earlier found that although the dismissal was procedurally fair, it was substantively unfair. The commissioner accordingly ordered the company to reinstate the employee with limited backpay.Unhappy with this outcome, Cipla turned to the Western Cape Labour Court to have it overturned. Mwale was subsequently charged and dismissed for testing positive for alcohol/drugs or being in possession of alcohol during working hours or while on duty.

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The CCMA earlier found that although the dismissal was procedurally fair, it was substantively unfair. The commissioner accordingly ordered the company to reinstate the employee with limited backpay. Unhappy with this outcome, Cipla turned to the Western Cape Labour Court to have it overturned.

Mwale maintained from the start that he had consumed a Bioplus energy drink while on his way to work and said he had not drunk water afterwards. He said that this may have caused the positive reading.He, however, disputed the breathalyser result and said his employer ought to have advised him of his right to request confirmatory blood testing. He said that this may have caused the positive reading.

He, however, disputed the breathalyser result and said his employer ought to have advised him of his right to request confirmatory blood testing. A human resources officer of Cipla testified that in terms of the zero-tolerance policy, where an employee disputes the outcome of a breathalyser test and requests further testing of blood, the company would make that option available and arrange for the necessary testing.

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