For years, breathalyser tests were a primary method to determine whether employees tested positive for alcohol. These results have been used by employers to sanction employees if the tests were positive. But what happens when an employee claims that a positive result on a breathalyser test is incorrect and still gets dismissed? The recent judgment of Samancor Chrome v Willemse demonstrates an employee's options should they believe that the positive result is incorrect and therefore, aren’t liable nor deserve any sanction – especially one of dismissal.

A zero-tolerance policy for alcohol is cemented within the culture of many companies. Employers adopt these policies to protect the workplace from either low performance or dangerous behaviour, which enables them to comply with their obligation to create a safe working environment in terms of the Occupational Health and Safety Act. 

However, there have been cases where an employee tested positive for alcohol and claimed that they were innocent but did not know how to prove it. This is because employees usually assume that breathalyser tests are the be-all and end-all. Mr Willemse illustrated that it can be questioned when he challenged an employer’s and a chairperson’s decision at a disciplinary hearing to have him dismissed for a positive breathalyser result.

In the recent unreported Labour Court judgment of Samancor Chrome Ltd v Willemse , Mr Willemse was dismissed for testing positive in an alcohol breathalyser test. A security officer stated during the arbitration hearing that on 22 February 2019, the employee arrived at work and was asked to undergo a breathalyser test on an Alcoblow Rapid device. The breathalyser showed a green light, indicating a positive result. When the employee questioned the result, he was tested again with the same breathalyser and had the same result. Upon another breathalyser test with a different device, Mr Willemse tested positive again. The employee continually denied having consumed any alcohol that day or the night before.

During the arbitration, the employee called his family doctor, Dr. Koekemoer, as a witness. The doctor testified that the employee consulted him after being accused of drinking alcohol. He thereafter obtained a blood sample from the employee and submitted it to Ampath Laboratory. The results were negative.

The arbitrator summarised the facts and recorded the question as follows: whether the employee had committed any act of misconduct and whether dismissal was the appropriate sanction. The arbitrator concluded that they fully understood that the applicant was using a method that is convenient for safety reasons to check if employees are intoxicated, but that the chairperson of the disciplinary hearing should have considered the laboratory results since they are more accurate and reliable.

Upon review, the employer argued that the arbitrator's decision should be reviewed and set aside because they committed a gross irregularity in the conduct of the arbitration proceedings. The employer argued that the arbitrator committed misconduct concerning their duties by ignoring and/or misconstruing relevant evidence and that as a result, they reached a decision that a reasonable commissioner would not reach.

The Labour Court, however, held that in the absence of any reviewable irregularity in the arbitrator’s assessment of the evidence, the grounds for review stand to be dismissed. Further, upon assessment of all of the evidence and the outcome of the arbitration proceedings (i.e., that the applicant had failed to establish the misconduct for which the employee was dismissed) falls within a range of decisions to which a reasonable decision-maker could come.

The arbitrator’s, and later the Labour Court’s, decision to deny the employer’s view caused widespread discussion. Numerous news outlets and publications declared that breathalyser tests could no longer be used to assess if an employee violated company policy by consuming alcohol. This assumption is an inaccurate reading of the decision. The court was not tasked to determine the admissibility or correctness of breathalyser test findings. The court was only required to assess whether the arbitrator made a reasonable decision in favouring the employee's evidence over the employer's.

Thus, both employees and employers should remember that breathalyser tests may still be used in the workplace. However, an employer must be able to prove the truth and accuracy thereof, and should another, more accurate method arise to determine the blood alcohol level, both the employer and the chairperson of a disciplinary hearing (should it reach this stage) must consider the latter within their respective decisions.


WRITTEN BY BRIDGETON PETOORS
Bridgeton Petoors is a Candidate Attorney at Miller Bosman Le Roux Attorneys.

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