10 April 2024
As discussed in a previous article, Cannabis in the Workplace, many companies adopt a zero-tolerance policy for alcohol and intoxicating substances. A zero-tolerance approach is justified if the employer can prove that such a rule is necessary and valid. The high-risk nature of the employer’s operations or a particular job, such as employees working at altitude, driving heavy vehicles or operating dangerous machinery, would justify a zero-tolerance policy.
Confirming intoxication and guilt at a disciplinary hearing once an employee is suspected of being under the influence of alcohol is not simple. Recent case law suggests it's more complex than conducting a Breathalyzer test. This complexity underscores the importance of thorough and fair procedures in such cases.
Breathalyser tests are admissible as evidence in disciplinary hearings; however, their evidentiary value is questionable.
Using a Breathalyzer test without corroborating evidence is insufficient to prove intoxication and subsequent guilt at a disciplinary hearing. This underscores the necessity of a comprehensive approach, where a Breathalyzer test is just one part of the puzzle, and other evidence, such as an Observation report or blood test, is also considered.
Case Study
In the recent case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150; (2023) 44 ILJ 2013 (LC) (29 May 2023), the company had a zero-tolerance policy: “a person shall be deemed to be unfit to enter the premises if their breath-alcohol level exceeds 0.000 per cent.” Their disciplinary code further stated that breaching this rule is considered gross misconduct and could result in dismissal on a first offence.
Mr. Willemse tested positive while reporting for duty with a breath-alcohol reading of 0.013%, confirmed by a second reading on the same Breathalyzer instrument and a third reading on a different Breathalyzer device, whereafter he was dismissed. At the CCMA, Mr Willemse challenged the substantive fairness of the dismissal based on an expert witness and a negative blood test conducted closely after the Breathalyser tests.
He argued that the results of the breathalyser tests were not sufficiently accurate to prove that he was intoxicated and breached the company’s zero-tolerance policy, further, there was the chance that the Breathalyzer tests showed false positive results based on a list of factors, including a person having consumed a product with yeast or who had been fasting for more than 8 hours. The Commissioner ruled that the dismissal was substantively unfair and ordered reinstatement with backpay.
He added that the Chairperson of the disciplinary hearing ought to have considered the laboratory blood test results more accurate and reliable than a Breathalyzer test.
Limitations of the breathalyser test
The company took the CCMA’s ruling on review to the Labour Court. The court found that the chances of the Breathalyzer tests presenting false positives were a good possibility. Therefore, there was insufficient evidence to prove guilt based on a balance of probabilities. The application for review was dismissed with costs.
The above case demonstrates that employers cannot rely solely on Breathalyzer tests to dismiss an employee for allegedly breaching the company’s zero-tolerance policy. Whilst a Breathalyzer test can be a useful screening tool, an employee should not be subjected to a disciplinary inquiry unless there is sufficient supporting evidence to corroborate intoxication and subsequent guilt, especially when contested by the employee. Where a Breathalyzer test is positive, an employee should be subjected to an Observation and/or Sobriety test, whereafter an Intoxication Report must be completed to support the positive reading of intoxication.
For more information on the above or assistance with the Observation on Intoxication Report, contact Invictus Group.
