Workers cannot be dismissed solely on basis of breathalyser tests, court rules

Employers cannot solely rely on breathalyser tests to dismiss workers.

This is according to a recent judgment by the labour court. The court upheld a ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) which found that Rickus Ernst Willemse's dismissal by mining company Samancor Chrome was “substantively unfair” and ordered his reinstatement “with retrospective effect”.

The company had approached the labour court to have the arbitration award by commissioner Daddy Moletsane reviewed and set aside.

According to the court judgment, Willemse was fired in 2019 after he tested positive for alcohol intake three times and on two breathalyser tests. 

“The machines returned a 0.013% alcohol content, in violation of the company's zero-tolerance policy. Willemse denied he had consumed alcohol on the day he was dismissed or the night before and challenged his dismissal,” reads the judgment. 

Summarising the factual background from the arguments during the hearing, judge André van Niekerk explained that Samancor has a zero-tolerance policy towards alcohol and drug consumption for “all employees at all levels” and bars any worker from entering the building should their breath alcohol level exceed 0.000% and if drug tests show the presence of illegal substances.

The policy goes on to state that disciplinary action will be taken against anyone found contravening this policy, as “this offence is viewed as gross misconduct and may lead to summary dismissal on the first offence”.

The company's disciplinary code also says workers who test positive for drug or alcohol consumption or refuse to take one will be dismissed.

Willemse had been employed at Samancor from 2000 and until his dismissal “after being charged with having tested positive for alcohol on February 22” three times. He was first tested twice on the same machine and then on a second, and the company relied on these results to dismiss him.

A blood sample was then taken from Willemse and sent for testing but returned a negative result. 

“The method used to determine the blood alcohol content in the sample was a plasma ethanol test, which cannot test for alcohol below 0.010g/dl [grams per decilitre]. The report issued by the laboratory was negative, that is it indicated that the employee's blood sample had less than 0.010g/dl alcohol content,” he said.

A chemical pathologist testified that this blood test was more accurate than a breathalyser because the latter “may be false in certain circumstances”. These include if the person has not eaten for more than eight hours or consumed food that contained yeast.

“In his opinion, the result of the test performed did not mean that the employee did not have any alcohol at all in his blood; it simply meant that there was no blood alcohol content exceeding 0.010g/dl — but for all clinical purposes, the result was negative,” Van Niekerk said.

Willemse's doctor corroborated this, saying blood taken during a consultation also returned a negative result.

Moletsane, in his ruling, made reference to the pathologist's evidence that breathalyser tests “may in certain circumstances produce false positive results” and that the lab tests were more “reliable”.

He also said while he understood the need for Samancor to use a method more “convenient for safety reasons” to check for intoxication, “the chairperson of the disciplinary hearing ought to have taken the laboratory results into consideration since those have more accurate and reliable results.

“It is largely on this basis that the arbitrator concluded that 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.”

Samancor, in its labour court application, contended that the CCMA's award stood to be reviewed and set aside because Moletsane “committed a gross irregularity in the conduct of the arbitration proceedings” and “misconduct in relation to his duties as an arbitrator by ignoring and/or misconstruing relevant evidence, and that as a result, he reached a decision that a reasonable commissioner could not reach”.

It also accused Moletsane of misconstruing the nature of the inquiry and based his findings on whether Willemse was intoxicated or not.

“Samancor submits that the applicable policy, being one of zero tolerance, did not mean that it was necessary for the employee to be intoxicated for there to be a breach of the workplace rule.

“Further, the applicant submits that the nature of the applicant’s business justifies the zero-tolerance rule, and that it is not incumbent on the applicant to demonstrate that the employee was intoxicated or that he was unable to perform his contractual duties at the time. That was not the allegation for which the employee was dismissed; he was dismissed for contravening the zero-tolerance rule.”

Van Niekerk found that Moletsane did not “misconceive the nature of the inquiry” and upheld his ruling. Samancor's application was dismissed with costs.

Willemse's lawyer Henk Wissing said his client was relieved at the outcome but was still deciding on the next step.

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