Employers cannot rely on a breathalyser to test to see if their employees are under the influence of alcohol.

Jacques van Wyk and Michiel Heyns from Werksmans Attorneys looked at the matter in the case of Samancor Chrome Ltd (Western Chrome Mines) v Rickus Willemse and Others, where an employee was fired for failing a breathalyser test.

The employer had a zero-tolerance policy for alcohol in the workplace, and staff could not enter the premises if their breath alcohol level exceeded 0.00%.

When the employee arrived at work, he was asked to submit a breathalyser test.

The breathalyser came back with a positive result – with the employee then failing another test on the same breathalyser and a different device. His blood alcohol level was recorded at 0.013%.

He was fired and subsequently took the matter to the CCMA. At the arbitration, a doctor said that a blood sample from the employee was sent to a pathology lab to see if there was alcohol in their bloodstream.

“A chemical pathologist testified that the method used by the pathology laboratory to determine blood alcohol, a so-called ‘plasma ethanol test’, cannot test for alcohol below 0.010g/dl. The report issued by the laboratory was negative, i.e. it indicated that the employee’s blood sample had less than 0.010g/dl alcohol content,” the experts said.

The pathologist also argued that blood tests are far more accurate than breathalyser tests as the former can give false positives if the person has not eaten for more than eight hours or consumed a substance with yeast.

The pathologist added that the blood test result did not indicate that the employee had no alcohol in his blood but rather that the blood alcohol content did not exceed 0.010 g/dl.

The arbitrator said that the chairperson of the disciplinary hearing should have also used a blood test instead of solely relying on the more convenient but less reliable breathalyser.

The arbitrator ruled that the employee did not break the employer’s rules as the laboratory results, in tandem with the expert testimony, demonstrated that the employee did not have alcohol in his blood.

The employer took the matter to review, arguing that the employee was not fired for being drunk and unable to perform his duties; he was fired for breaching the zero-tolerance rule – and the tests proved that he had alcohol in his system.

Upon review, the court said that the arbitrator’s only conclusion was that the employee did not have alcohol in his bloodstream and that there was no evidence of intoxication.

The court considered all the available evidence and noted that it was the employer’s responsibility to prove that there was alcohol in the employee’s system.

The employer’s doctor argued that evidence shows that breathalyser tests are less reliable than blood tests.

The pathologist’s proof that the breathalyser test results were inaccurate could also not be neglected over a lack of evidence.

“Upon a conspectus of the evidence, the employer did not discharge the onus to prove that there was alcohol in the employee’s bloodstream, and the arbitrator’s finding was upheld,” the expert said.

The importance of the case

Although employers are obliged to ensure a safe environment, the onus will be on them to prove on a balance of probabilities that the accessed employee is guilty of misconduct.

“In the case of an allegation that an employee is guilty of misconduct because the employee contravened a zero tolerance to alcohol rule, the result of a breathalyser test may not be enough to discharge this onus, especially in instances where the result indicates a near negligible blood alcohol level, such as in the current instance,” the experts said.

“In such instances, the employer may be well-advised to refer the employee to a doctor for a more accurate blood alcohol test, before embarking on a disciplinary process.”

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