BRENTWOOD

2023-06-10

Don’t throw away the breathalysers.

The Labour Court ruled that a blood test is a more reliable test than breathalyser to detect alcohol and reinstated an employee who tested positive for alcohol in three breathalyser tests, but when he went for his own blood test, tested negative.  He was reinstated retrospectively back to his dismissal in 2019.

It doesn’t mean breathalysers are not adequate evidence to take the decision to disciple and dismiss.  In this case the blood tests showed that the employee tested negative.  The blood test was a plasma ethanol test, which cannot test for alcohol below 0.010g/dl [grams per decilitre], which the lab stated, for clinical purposes, was a negative reading.  The employer did argue that it meant that, because the test could not read below 0.01, that there was the possibility that the employee was between 0.00 and 0.009g/dl, which was under the influence in a zero tolerance workplace. A doctor stated in court that blood tests are more reliable because breathalyzer tests could false in certain circumstances, for example, when the person tested had not eaten for more than eight hours or eaten food with a yeast content.

The CCMA arbitrator, and now the Labour Court looked at the totality of the evidence: three breathalyser tests which may not have been entirely accurate and a blood test which was clinically negative.
The blood test defined more accurately whether or not the employee was under the influence rather than the breathalyser test.

So where does that leave us as we try to enforce the required zero tolerance workplaces?

- Do we abandon the zero tolerance approach to alcohol at the workplace?
No. The Occupational Health and Safety Act requires a zero tolerance approach.

- Does that mean we can’t test employees for alcohol with breathalysers?
No.

- Do we do away with the breathalyser?
No. Not as a result of this ruling. This ruling said that the blood test was more reliable in this case than the breathalyser tests. There was a blood test to compare the breathalyser test.

- Do we now have to do blood tests to decide if somebody is under the influence?
No.  When the chairperson of the disciplinary enquiry makes their decision they need to take all the evidence into account before making the decision to dismiss.  If there is a blood test available, then the blood test will trump the breathalyser tests. In this matter the employee arranged their own blood test, and the Labour Court has not said there must be a blood test – only that the totality of the evidence before the chairperson should be taken into account.

- What can influence a breathalyser test?
Food with yeast content like white or sourdough bread, vetkoek, overripe fruit, over counter medications, cough syrup, asthma medication, some mouthwashes, breath fresheners, perfume, etc.  Because of these influences it is best to conduct several breathalyser tests with 30-60 minute intervals. Medical conditions like acid reflux and diabetes may also affect the reading.

SAMANCOR CHROME LTD (WESTERN CHROME MINES) and RICKUS ERNST WILLEMSE and CCMA (JR 312/2020) LC (29 May 2023)