Can you be dismissed for being drunk or using drugs at work?

An operator arrives for the night shift smelling of alcohol. A driver fails a breathalyser at the depot gate. An administrator tests positive for cannabis during a routine medical check, although nobody has ever seen her impaired. Each case raises the same question: can the employer dismiss? The answer depends on what kind of job it is, what the employer can prove, whether the employee has an addiction, and how the employer's policy is written. This guide explains the safety rules, testing, the special position of cannabis, zero-tolerance policies, and when dismissal is fair.

This guide is part of our Discipline at work: warnings, hearings and dismissal, which links every guide on the topic.

Misconduct or incapacity: the first question

There are two different problems, and they follow different procedures.

• Misconduct is being under the influence at work, drinking or using drugs on duty, or bringing alcohol or drugs onto the premises in breach of a rule. The employee chose to do something wrong, and discipline applies.
• Incapacity is a dependence on alcohol or drugs that the employee cannot control. Addiction is treated as an illness. The Code of Good Practice: Dismissal, 2025, like the code it replaced, treats dependence as a form of incapacity and expects the employer to consider counselling or rehabilitation before dismissal is contemplated.

The same incident can involve both. An employee who arrives drunk can be disciplined for the incident, but if the employer knows or should reasonably suspect an addiction behind repeated incidents, going straight to dismissal for misconduct is risky. The guide to incapacity and misconduct explains why choosing the wrong track can make a dismissal unfair.

The safety rule

Regulation 2A of the General Safety Regulations, made under the Occupational Health and Safety Act 85 of 1993, deals with intoxication. It says:

• an employer may not allow any person who is or appears to be under the influence of intoxicating liquor or drugs to enter or remain at a workplace;
• no person at a workplace may be under the influence of, possess, use or offer anyone intoxicating liquor or drugs; and
• an employee taking medicine may work only if its side effects do not threaten their own or others' health or safety.

The words "appears to be" matter. An employer is entitled, and in fact obliged, to send an apparently intoxicated employee home before any test result is available. Mines have their own rules under the Mine Health and Safety Act, and drivers are also subject to road traffic law.

Testing at work

Employers test with breathalysers, urine or saliva tests and, less often, blood tests. A test lets the employer find out about a medical condition, so it falls within the Employment Equity Act's definition of medical testing. Section 7 of that Act prohibits medical testing unless legislation permits or requires it, or it is justifiable in light of medical facts, employment conditions, social policy or the inherent requirements of the job. Regulation 2A and the safety demands of many jobs usually provide that justification, especially where a written policy sets out when and how tests will be done.

A test result is only as good as the process behind it. Arbitrators look at whether:

• the employee knew about the policy and the testing;
• the device was calibrated and the tester trained;
• a second test was done to confirm a positive reading;
• the employee was offered the chance of an independent test;
• the sample was handled so that it could not be mixed up.

An employer does not always need a test. Evidence that an employee smelled of alcohol, slurred their speech, was unsteady or behaved erratically, given by credible witnesses, can be enough to prove that they were under the influence.

Cannabis after Prince

In Minister of Justice and Constitutional Development v Prince, decided on 18 September 2018, the Constitutional Court held that criminalising the use, possession and cultivation of cannabis by an adult in private for personal use was unconstitutional. The Cannabis for Private Purposes Act 7 of 2024 was signed on 28 May 2024 to regulate that private use. At the time of writing, most of it had not been brought into force and draft regulations had been published for comment in February 2026.

Neither Prince nor the Act gives anyone a right to use cannabis at work or to be impaired at work. Regulation 2A applies to cannabis as it does to alcohol.

The difficulty is that cannabis can show up in a test days or weeks after use, long after any effect has worn off. That was the issue in Enever v Barloworld Equipment South Africa, decided by the Labour Appeal Court on 23 April 2024. Ms Enever used cannabis at home after the Prince judgment. She worked in an office, did not operate machinery and was never suspected of being impaired. A routine test was positive, and she was dismissed under a zero-tolerance policy. The Labour Court found the dismissal fair. The Labour Appeal Court set that aside. It found that treating her as intoxicated when she was not, under a policy that in effect treated cannabis users more harshly than alcohol users, was unfair, that avoiding cannabis at home was not an inherent requirement of her job, and that the dismissal was automatically unfair. It awarded her 24 months' remuneration as compensation.

Enever does not stop employers from disciplining employees who are impaired at work, or from strict rules in safety-sensitive jobs such as driving, mining or operating machinery. What it shows is that, outside those jobs, a positive test without evidence of impairment or real risk is a weak basis for dismissal.

Zero-tolerance policies

A zero-tolerance policy usually means that any detectable alcohol or drugs, or any positive test, is treated as a serious offence. Such policies are generally accepted where the job is safety-sensitive and the policy is clear, known and consistently applied. They are much harder to defend where the job carries no real safety risk and the policy punishes off-duty conduct that has no effect on the work.

Even a valid zero-tolerance policy does not remove the need for a fair procedure, or the duty to consider whether the employee has an addiction. An arbitrator will still ask whether dismissal was an appropriate sanction in the circumstances.

Addiction as an illness

Where an employee is dependent on alcohol or drugs, the employer should treat the problem as incapacity. That usually means meeting with the employee, discussing the problem, and giving a reasonable opportunity to get treatment, often through an employee assistance programme, a rehabilitation programme or medical leave. The employee must cooperate. An employee who denies the problem, refuses help or relapses repeatedly after genuine support can fairly be dismissed in the end, after a fair incapacity process. The employer is not expected to support an employee indefinitely.

Admitting to an addiction only once you are facing a charge is not an automatic defence. But it may change the sanction, and an employer that ignores it takes a risk.

Fair procedure

For misconduct, the usual rules apply: a clear charge, time to prepare, the right to a representative, the chance to challenge the evidence and an impartial chairperson. The guide to disciplinary hearings explains each step. The hearing should be held once the employee is sober, not on the spot, and the employee should be given the test results and any witness statements beforehand.

For an incapacity process, the steps are different: the employer should meet the employee, discuss the problem openly, agree on treatment and a reasonable time for it, review progress, and only consider dismissal after the support has failed. Keeping a written record of each step protects both sides.

For a less serious first incident in a low-risk job, a warning is often the more appropriate sanction.

Worked example

This example is illustrative. Bongani has driven a forklift at a Pietermaritzburg packaging plant for six years. The company's alcohol policy, which he signed, prohibits any alcohol in the blood while on duty and provides for breathalyser tests on arrival. One Monday he tests positive at 06:00. A second test 15 minutes later confirms the reading. A supervisor notes that he smells of alcohol. He is sent home and charged.

At the hearing, Bongani says he drank on Sunday night and felt fine. He has a final written warning for a similar incident eight months earlier, after which he was referred to the company's employee assistance programme but did not attend. He is dismissed. Because the job is safety-sensitive, the tests were properly done, he knew the rule, and he did not take up the help offered, a dismissal is likely to be found fair.

Change the facts: if Bongani had worked in the accounts department, tested positive for cannabis on a routine test and shown no sign of impairment, a dismissal would be open to challenge on the reasoning in Enever. If he had told his manager months earlier that he was struggling with drinking and asked for help that was never given, the employer would need to run an incapacity process before dismissing.

What to do

1. Read your employer's alcohol and drug policy and know whether your job is classified as safety-sensitive.
2. If you are tested, ask for a second test and note the time, the device and who did it. Ask for an independent test if you dispute the result.
3. If you take prescribed medicine that could affect your work or a test, tell your employer before you start a shift.
4. If you have a dependence problem, ask for help before an incident occurs. A request for help changes how the law treats you.
5. If you are charged, prepare using the guide on preparing for a disciplinary hearing.
6. If you are dismissed, refer the dispute to the CCMA within 30 days of the dismissal, or of the employer's final decision if that is later. An automatically unfair dismissal claim follows the same referral route.