Don’t Bank on Breathalysers
Case:
Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023)
Background:
In this case, Samancor Chrome’s (“Employer/ Samancor”) alcohol and drugs procedure contained the following policy statement:
“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…
3.5. 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.”
In March 2019 and after testing positive for alcohol consumption, Rickus Ernst Willemse was dismissed.
He referred a dispute to the CCMA, and at arbitration a security officer testified that Willemse was asked to take a breathalyser test on an Alcoblow Rapid machine on his arrival at work. The breathalyser indicated a green light, meaning the result was positive.
Willemse disputed the result and a second test was taken on the same machine, with the same result.
Willemse continued to deny having consumed any alcohol on the day or on the previous evening. The test was then taken on another machine, being the Lion Alcometer 500. The result was again positive and indicated an alcohol content of 0.013%. Willemse then had a blood sample taken by a medical professional on his request and sent it was sent to a laboratory. The result was negative.
At the CCMA:
According to the evidence led by a chemical pathologist on behalf of the employer, the method used to ascertain the blood alcohol content was a plasma ethanol test. With regards to this test, any alcohol content below 0.010g/dl may not show up and would be regarded as negative. The expert further testified that a blood sample was more accurate than a breathalyser test, as these tests have proven to be false under certain circumstances. As such, the expert testified that in his opinion “the result of the test did not mean that Willemse failed to have any alcohol at all in his blood, it simply meant that there was no blood alcohol content exceeding 0.010 g/dl”.
The arbitrator referred to the pathologist’s evidence that breathalyser tests are prone to producing false positive results under certain circumstances and as such the more reliable test is a blood sample tested in laboratory conditions. On this basis that the arbitrator found that the chairperson to the disciplinary hearing should have considered the laboratory results as being more reliable and accordingly that Willemse did not breach the employer’s policy pertaining to the consumption of alcohol and drugs. The arbitrator found that the dismissal of the employee was substantively unfair and ordered retrospective reinstatement.
At the Labour Court:
The award was taken on review. The employer submitted that the arbitrator misunderstood the nature of the inquiry and thus committed a gross irregularity. The employer added that the arbitrator ignored important evidence and failed to understand that the dismissal of Willemse was because he broke the employer’s zero-tolerance rule (based on the nature of the employer’s business), and the issue was not whether he was intoxicated or not.
The Labour Court held that the arbitrator was fully aware that Willemse had been dismissed for having alcohol in his blood, and not for intoxication. The Labour Court held that it was unable to find any misdirection by the arbitrator in assessing the evidence. The arbitrator had not misconceived the nature of the enquiry. In fact, it was the employer’s own expert witness who confirmed that the blood test was more reliable than any breathalyser test and that the negative result of the blood test was correct. The onus was thus on the employer to prove that there was alcohol in the employee’s bloodstream, which it failed to do.
In conclusion the Labour Court held that in the absence of any reviewable irregularity in the arbitrator’s assessment of the evidence, the application was dismissed, with costs.
Conclusion:
Breathalyser test results can be unreliable for proving blood alcohol content.
