Can an employer dismiss an employee based on a breathalyser test result?

August 1st, 2023
x
Bookmark
Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (GJ) (unreported case no JR312/2020, 29-5-2023) (Van Niekerk J)

Mr Willemse (employee) was employed by Samancor Chrome (employer) in September 2000. The employee was charged and dismissed for having tested positive for alcohol on the 22 February 2019 at the workplace. The chairperson dismissed the employee on 25 March 2019.

The employee allegedly contravened the employer’s policy on alcohol and drugs procedure. The policy statement states:

‘This procedure applies to all employees at all levels. Western Chrome Mines subscribe to a policy of zero tolerance alcohol and drugs.

A person shall be deemed unfit to enter the premises in the event that their breath alcohol level exceeds 0.000 percent and if the drug test indicates any illegal substances.

The company shall take disciplinary action in all cases where an employee have (sic) tested positive for alcohol and/or drugs, this offense is viewed as gross misconduct and may lead to summary dismissal on the first offence.’

Clause 6.11 of the employer’s disciplinary code provides the following:

‘Employees are implored to refrain from influence of drugs including alcohol. The company has a zero-tolerance approach towards drug/alcohol use in its workplace and will not hesitate to dismiss any employee who:

  • has a positive drug (including alcohol) tested reading; or
  • refuses to undergo a drug (including alcohol) test.’
Arbitration

The arbitrator was required to decide whether the employee had committed any act of misconduct, and whether the dismissal was the appropriate sanction.

The employer led the evidence of three witnesses.

Phumla Ngemntu, a security officer for the company, stated that when the employee arrived at work on 22 February 2019, she performed a breathalyser test on him using an Alcoblow Rapid machine. The outcome was positive. The employee was dissatisfied, so Lonia Mabesele conducted another test using the Lion Alcometer breathalyser. The result was once again positive, with an alcohol concentration of 0.013%.

According to Ms Ngemntu’s testimony, the applicant maintained a zero-tolerance policy for the use of drugs and alcohol at work, and any employee who tested positive for alcohol during a required test was subject to a dismissal.

Ms Mabesele in her testimony corroborated what Ms Ngemntu said.

Further evidence was from a chemical pathologist, Dr Jaco Broodryk. In his testimony, he said that Ampath Laboratories tested a sample of blood taken from the employee to see if there was any alcohol in it. A plasma ethanol test, which cannot measure alcohol below 0.010g/dl, was the procedure used to calculate the sample’s blood alcohol content. The laboratory’s report was negative, meaning that the blood sample of the employee contained less than 0.010 g/dl of alcohol.

Dr Broodryk testified that a blood test is more accurate than a breathalyser and that breathalysers can be wrong under certain circumstances. According to him, the test results performed do not mean that the employee is completely free of alcohol in his blood, but simply does not have a blood alcohol concentration above 0.010 g/dl.

The employee testified that he was aware of the employer’s policy and did not consume alcohol. He consulted Dr Koekemoer on the day who drew blood for determination. Dr Koekemoer corroborated the employee’s evidence and added that the blood sample was sent to Ampath Laboratories of which the results were negative.

The arbitrator centred his award around the expert’s evidence, namely Dr Broodryk. He stated that reliance should be put on the laboratory results as they are more accurate demonstrating a negative result. He said, ‘there was no breach of the rule by the employee as the laboratory results, coupled with the expert testimony, confirmed that the employee did not have alcohol in his blood.’

Unhappy with the award the employer launched a review application based on the arbitrator’s misconception of the nature of the enquiry.

Labour Court

The employer argues that because there is zero tolerance, there was a violation of the workplace policy and code even if the employee was not intoxicated. The employee was dismissed for breaking the zero-tolerance policy, not for intoxication.

The employer argued further that the arbitrator misconceived the nature of the enquiry since the report had a negative outcome, which Dr Broodyk made clear did not mean that there was no alcohol in the blood content but rather that the alcohol in the blood content was less than 0.10. Put differently, the employee’s blood alcohol content may have been anywhere between 0.000 g/dl and 0.009 g/dl.

This court held the arbitrator did not misunderstand the nature of the inquiry. Only the absence of alcohol in the employee’s blood was determined by the arbitrator; intoxication was not determined.

The burden of proving that the employee’s blood contained alcohol fell on the employer. The employee did not dispute that the expert evidence did not demonstrate whether alcohol was present in his blood or not, or even if it was.

The employee did not claim that Dr Broodryk’s evidence firmly proved that there was no alcohol in his blood, but likewise he did not state that there was any alcohol in the employee’s blood.

According to the court, where a blood alcohol test result is negative, an employer cannot rely on a breathalyser test result that shows a positive reading for alcohol. Furthermore, a breathalyser test frequently produces a positive result even when the person has not had any alcohol. The expert’s testimony that consuming something containing yeast can produce a positive outcome was relied upon by the court in this case. For this reason, the court found it is crucial to use the outcomes of a blood test.

Conclusion

It is clear from this case that employers should not be quick to charge employees based on the results of a breathalyser test. The result from a breathalyser test is not conclusive and needs to be corroborated. Employers cannot solely rely on a breathalyser test to dismiss an employee.

Phumzile Penelope Ziqubu LLB (UKZN) is a legal official in Johannesburg. She writes in her own capacity.

This article was first published in De Rebus in 2023 (Aug) DR 34.

X