A sip of cough mixture the previous evening and two spoons of the same mixture on the morning before he went to work, was the subject of a prolonged legal wrangle between a forklift driver and his company, after he was at first fired for testing positive for alcohol consumption.

The worker, only identified as Mr Tsamse by the Johannesburg Labour Court, was fired by Chill Beverages International, which has a zero tolerance for alcohol intake while at work.

The CCMA subsequently overturned his dismissal, but the beverages company now turned to the Labour Court to review the CCMA’s finding.

Tsamse was employed by the company in June 2017 and served as a warehouse controller at the time of his dismissal for alleged gross misconduct after failing a breathalyser test.

The beverage company manufactures and distributes various beverages, some containing alcohol. As a forklift driver, Tsamse had to transport raw materials, including bags weighing up to one ton of sugar or containers of up to 1,000 litres of liquid ingredients.

The company argued that its zero tolerance policy prohibits employees from having any intoxicating substances in their bloodstream during working hours, and they are forbidden from using any alcohol during work or within six hours before the start of their shift.

It said higher levels of alcohol would automatically lead to a disciplinary hearing and possible dismissal.

On the day in question, Tsamse was an hour late for work and, as usual, he was subjected to a breathalyser test when he entered the factory. He tested positive and had to undergo the test several times.

The company also used different devices to ensure that the initial device was not faulty. Tsamse was required to wait in the canteen, where he could eat and drink before being re-tested. He was tested again and failed once more.

He submitted that he had used medication and was unaware that it contained alcohol. The CCMA commissioner who initially overturned his dismissal noted that he did not smell of alcohol and displayed no visible signs of being intoxicated. It was also noted that he was a first offender with six years of service at the time of his dismissal.

Tsamse maintained that he did not consume any alcohol the day before his shift or on the morning of his shift. He was unwell the day before and had obtained a cough mixture from a neighbour.

He took some cough mixture in the evening before his shift and two teaspoons of the same mixture before walking to work on the morning of his shift.

He explained that he was unaware that the cough mixture contained any alcohol, as he did not read the label. Thus, he said, he had unknowingly contravened his employer’s no substance policy.

A manager at the company explained that an employee working on machinery while under the influence posed a serious occupational and health risk, thus the zero-tolerance approach.

The commissioner, in earlier overturning Tsamse’s dismissal, found no evidence to suggest that he had consumed alcohol the evening before or on the morning of his shift.

He also agreed that Tsamse was not intoxicated and showed no signs of drunkenness.

In asking for this ruling to be overturned, the company questioned the conclusion that Tsamse was negligent for not reading the label on the medicine bottle, but that the policy had not been breached.

The Labour Court, however, turned down the review and found that the commissioner’s findings were reasonable under the circumstances.

zelda.venter@inl.co.za

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