Employment law is constantly evolving — and so should workplace policies. As South African employers, staying compliant isn’t just a legal box to tick; it’s essential to protecting both your people and your business.

Recent court rulings have reshaped how companies should handle alcohol and cannabis in the workplace, challenging the long-standing “zero tolerance” approach.

The Changing Landscape of Workplace Substance Policies

With the legalisation of private cannabis use and ongoing shifts in employment law, employers can no longer rely on outdated, rigid policies.
A modern substance abuse policy must address both legal and illegal substances, clearly distinguishing between presence, impairment, and influence.

  • Alcohol remains legal but regulated.

  • Cannabis is legal for private adult use but not for workplace consumption.

  • Illegal substances (like cocaine, heroin, or methamphetamine) remain strictly prohibited.

Alcohol: Lessons from the Samancor Chrome Case

The Samancor Chrome v Willemse (LC SA 312/2020) case changed how breathalyzer results are interpreted.

In this case, an employee tested positive for alcohol using a breathalyzer and was dismissed under a zero-tolerance policy. However, laboratory tests later found no alcohol in the employee’s blood. The Labour Court ruled the dismissal unfair, noting that “alcohol on the breath” does not automatically mean “under the influence.”

What This Means for Employers

To prove impairment, employers must rely on observable evidence — not just a test result. Indicators such as slurred speech, red eyes, erratic behaviour, or unsteady balance are important supporting evidence.

If your workplace is safety-critical, a zero-tolerance policy may still be valid. For lower-risk environments, a more flexible policy aligned with the National Road Traffic Act thresholds (0.05 g/100 ml for general drivers) is advisable.

Cannabis: Insights from Enever v Barloworld (Labour Appeal Court, 2024)

The Enever case further clarified the rights of employees using cannabis privately. The Labour Appeal Court overturned a previous ruling, stating:

  • The employee was not impaired or intoxicated at work.

  • The workplace had no inherent safety risks.

  • The company’s “zero-tolerance” stance amounted to an invasion of privacy.

The Court emphasized that each case must be judged on its own merits, and employers must justify zero-tolerance policies with clear safety or operational reasons. In this case, the employee was awarded 24 months’ compensation for discrimination.

Crafting a Balanced Substance Policy

To align with evolving case law, employers should:

  1. Differentiate between presence and impairment.

  2. Justify zero-tolerance based on safety, machinery, or regulatory requirements.

  3. Train Health & Safety Officers to conduct and document tests properly.

  4. Use accredited testing equipment and maintain calibration certificates.

  5. Arrange laboratory confirmation when initial tests are positive.

  6. Record observations using a formal checklist to support fair hearings.

An effective policy protects both the business and its employees, promoting fairness, dignity, and compliance with the Occupational Health and Safety Act (OHS Act 85 of 1993).

Criminal Records and Employment

Another evolving issue relates to criminal records as a disqualifying factor. In O’Connor v LexisNexis (P18/24), the court reaffirmed that while trust is vital in employment, requiring a “clean record” must be justified by the nature of the job.

For example, it’s reasonable for positions involving financial data, senior roles, or access to sensitive information — but not for all positions across the board. Employers must also respect privacy laws under the Protection of Personal Information Act (POPIA) and the Constitution.

Key Takeaway for Employers

South African employers have a legal duty to maintain a safe workplace, but applying blanket zero-tolerance rules can lead to costly disputes or unfair dismissal claims.

A fair, evidence-based approach is now the standard. Employers should:

  • Review and update alcohol and substance policies.

  • Train staff on proper testing and observation procedures.

  • Revisit recruitment criteria related to criminal records.

  • Align workplace rules with recent labour law precedents.

Partner with Experts Who Understand HR Compliance

Navigating the balance between safety, fairness, and compliance can be complex. At Smart Labour Works (SLWORKS), we help businesses design custom HR frameworks that protect both employer and employee rights — ensuring your policies remain legally sound, practical, and people-centred.

Stay compliant. Stay protected. Empower your workforce.
Contact SLWORKS for tailored HR and compliance support.