The Employer’s Control of Alcohol and Drug Testing Technology in the Workplace: An Analysis of Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (Jr312/2020) [2023]
This recent Labour Court judgment has caused uncertainty and panic among employers about whether breathalyser tests may still be used as a method to establish the presence of alcohol in an employee’s system in a workplace and as an effective tool to discipline or deny access to employees who test positive for alcohol. Some news articles have stated that employers are no longer allowed to dismiss employees for testing positive using a breathalyser and that only a blood test will suffice. This view, however, is misleading.
Samancor Chrome Limited (Western Chrome Mines) brought an application to review and set aside an arbitration award in terms of section 145 and 158(1)(g) of the Labour Relations Act, Act 66 of 1995, as amended, wherein the Arbitrator held that the dismissal of Rickus Willemse (the Employee) was unfair, and ordered reinstatement with retrospective effect.
Material Facts
Western Chrome Mines has a policy of zero tolerance towards drugs and alcohol use in its workplace. The Employee was dismissed on 25 March 2019 after testing positive for alcohol on a breathalyser test on 22 February 2019. The Employee questioned this result and he was again tested using the same breathalyser, with the same outcome. The Employee denied that he had consumed any alcohol on that day or the previous evening. The Employee was then breathalysed on another machine by another security officer. The result was again positive. The Employee then contacted his family medical practitioner who took a blood sample from the Employee and sent it to Ampath Laboratory. The results came back negative.
Dissatisfied with his dismissal, the Employee referred an unfair dismissal dispute to the CCMA. The security guards who performed the breathalyser tests on the Employee, as well as the family medical practitioner who drew the blood sample from the Employee, tendered evidence during the arbitration. The Company also called a Chemical Pathologist (the Pathologist) to testify as an expert witness in the proceedings.
According to the Pathologist, the method that was used to determine the blood alcohol content in the sample was a plasma ethanol test, which cannot test for alcohol below 0,010 g/dl. It bears mentioning that the report issued by the laboratory was negative and his indicated that the Employee’s blood sample had less than 0.010 g/dl alcohol content. The Pathologist testified that the blood test is more accurate than a breathalyser test which may have a false reading under certain circumstances. In his opinion the blood test performed did not mean that the Employee did not have any alcohol at all in his blood, rather it simply meant that there was no blood alcohol content exceeding 0.010 g/dl. Therefore, the Employee could have had a blood alcohol level of anything between 0.000 g/dl and 0.009g/dl.
The Arbitrator determined that the dispute was whether the Employee had committed any act of misconduct and whether the dismissal was the appropriate sanction. The Arbitrator referred to the Pathologist’s evidence that a breathalyser test may, in certain circumstances, produce false positive results and that the more reliable test is a blood sample tested in the laboratory. The Arbitrator further noted that whilst he understands why Western Chrome Mines uses breathalysers as a quick and convenient method to test for alcohol on its employees, the chairperson of the disciplinary hearing should have taken the blood test into consideration as that would provide more accurate and reliable results.
Consequently, it was on the basis of the negative blood test results coupled with the expert testimony that the Arbitrator found that there was no breach of the rule by the Employee.
Grounds for Review
The crux of this review is whether the Arbitrator misconstrued the nature of the enquiry and misdirected himself regarding the expert evidence that was led causing him to reach a decision that a reasonable commissioner would have not reached.
Submissions
Western Chrome Mines’ submissions. amongst others. were that the Arbitrator based his finding on whether the Employee was intoxicated, whereas it is not required to demonstrate that the Employee was intoxicated or that he was unable to perform his contractual duties at the time. Alternatively, the nature of the enquiry pertained to the dismissal of the Employee for contravening the zero-tolerance rule.
Labour Court Finding
The Court found that the Arbitrators Award clearly records that the Employee had been dismissed for having alcohol in his blood and not for intoxication. Therefore, the Arbitrator did not misconceive the nature of the of the enquiry nor could it be said that the Company was denied a fair trial. Finally, the Court also found that there was no misdirection by the Arbitrator in his assessment of the evidence as the evidence discloses that after the breathalyser tests, the Employee’s blood sample was analysed by the laboratory which produced a negative result. The expert witness confirmed that the blood test was more reliable than the breathalyser test and that the negative result of the blood test was correct. Accordingly, in the absence of any reviewable irregularity in the arbitrator’s assessment, the Court ultimately found that the review application should be dismissed.
Analysis
As a result of the Court not finding fault with the Arbitrator’s analysis of the evidence and the Arbitration Award rendered in these circumstances, many news publications have incorrectly stated that breathalyser tests can no longer be used to determine whether an employee consumed alcohol in contravention of a clear company policy.
The Labour Court was only required to determine whether the Arbitrator made a reasonable decision based on the evidence provided. It was not required to determine admissibility of breathalyser tests or their results. Western Chrome Mines appears to have failed to effectively rebutted the evidence of the Employee during the Arbitration which was fatal to its case.
Conclusion
After having considered the judgment, it appears that the facts in this case are quite unique and therefore it would not set any precedents for employer’s using breathalysers as a convenient and cost-effective method to screen employees entering their premises for the presence of alcohol. The case simply provides that where a breathalyser test shows the presence of alcohol in the blood and, for whatever reason, a blood test is also taken which is sent to a laboratory for analysis, the laboratory result that indicates that there is no alcohol in the bloodstream shall prevail and trump the breathalyser.
Accordingly, this judgment does not in any way prohibit the use of breathalysers in the workplace.
