Recent media coverage on the Samancor Chrome Ltd v Willemse dispute may have created a false impression that breathalyser results alone cannot be used to dismiss an employee, without corroboration from a blood alcohol test. Such media coverage is incorrect and misleading. Breathalyser results can and should be used as evidence in appropriate cases of dismissal, but these need to be supported by accurate reporting in line with company policies regarding alcohol and its related protocols. It is critical to reaffirm the reliability of accurately calibrated breathalyser testing devices to maintain health and safety standards within an organisation, along with the importance of implementing comprehensive alcohol and substance abuse policies because misconstruing the use and purpose of breathalysers will have severe consequences for workplace safety, and if employers lose confidence in the reliability of these devices or disregard their importance, the risk of accidents and subsequent injuries or deaths is likely to increase.
Context: Procedural mishandling
On 29 May 2023, the Labour Court delivered judgment in the case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others, questioning the reliability of breathalyser testing in enforcing an employer’s zero-tolerance alcohol and drugs policy. The employee in question was dismissed based on three positive breathalyser tests (on two different devices) indicating alcohol content. Still, he denied consuming alcohol and visited a medical practitioner to obtain a negative blood test result.
In this scenario, the employer’s policy considered any positive test as gross misconduct, leading to summary dismissal. The employee challenged his dismissal at the CCMA, where the arbitrator incorrectly determined that blood test results were more accurate and found that the employee did not breach the policy, resulting in retrospective reinstatement. The Labour Court, upon review, confirmed that the employer failed to prove the presence of alcohol in the employee’s bloodstream. The court also incorrectly highlighted the unreliability of breathalyser tests, stating that they can produce false positive results and are less reliable than blood tests. The employer’s review application was dismissed, and costs were awarded against them.
Correcting the mistake: following the proper procedure
The evidence presented in this case overlooked the importance of the timeline of events. It is imperative to note that the concentration of alcohol in a person’s system changes over time. More specifically to the case, a person’s blood alcohol concentration declines at a rate of about 0.020% per hour, as the alcohol in the bloodstream is processed by the individual’s liver. The evidence presented showed that the accused had a blood alcohol concentration of 0.013% BAC. Later, the doctor took a blood sample, which had a concentration of less than 0.010% BAC, as is to be expected. Therefore, the blood alcohol test reading is expected to reflect a zero result.
This timeline information was overlooked by the medical practitioner (who was called as an expert witness) and the mining organisation’s attorneys, which would have provided the proper perspective. It is widely accepted that certain substances like bread and cough mixtures can cause a positive breathalyser result due to the mouth-alcohol effect. To eliminate this possibility, it is recommended to conduct two tests 20 minutes apart, considering the timeline.
The importance of clear workplace policies and procedures
In order to defend their decision to dismiss, it is necessary for organisations to be very clear and deliberate in their approach to alcohol and substances in the workplace. It is not enough to state that they have a ‘zero tolerance’ approach. This must be substantiated by a clear workplace policy that highlights the risk of intoxication while defining what counts as a contravention of the policy (usually any reading above zero). It must then detail how the policy will be enforced (usually by means of breathalyser testing before entry to the workplace is permitted) and then clarify the consequences of contravention.
The company must also ensure that its procedures and protocols in this respect are inscrutable. It is recommended when an individual receives a positive screening test result, that the test is followed up with two confirmation tests performed 20 minutes apart. It is also advisable to perform the follow-up tests in a private office on a confirmation breathalyser, preferably with a printing kit.
Putting a price on safety
Testing for alcohol in the workplace is not one of the areas where businesses should be looking to cut costs. Only high-end breathalysers that are certified for law enforcement use should be used to test employees in the workplace. Not having the correct procedures in place alongside reputable breathalyser instruments can indeed become an incredibly costly exercise for a business.
Partnering with expert providers
It is important for companies to choose suppliers that can assist end-to-end with their workplace alcohol and substance abuse policies and protocols. The right provider will assist in drafting and implementing clear and effective policy documentation, along with conducting workplace awareness training on the dangers of substance abuse. They will ensure that testing protocols and procedures are optimally aligned to the risk associated with the specific job function and working environment, along with supplying the necessary equipment and training. Such a provider will also ensure that the equipment is properly calibrated and regularly maintained in order to uphold accuracy and reliability. This supplier becomes a trusted advisor in maintaining organisational health and safety, providing guidance in the event that any disciplinary action arising from policy enforcement is challenged at the CCMA. The supplier will take the company through the reporting procedures to be followed, along with providing expert testimony in a legal dispute setting, to ensure that decisions to dismiss an employee based on breathalyser results are correctly upheld.
Opinion Piece by Rhys Evans, MD at ALCO-Safe.
