Labour: Breathalyzer tests for workers ruled unreliable

Employers cannot solely rely on breathalyzer tests to dismiss workers, according to a recent judgment by the Johannesburg Labour Court, reports TimesLIVE. The court upheld a ruling by the CCMA which found that Rickus Willemse's dismissal by mining company Samancor Chrome was ‘substantively unfair' and ordered his reinstatement. The company had approached the Labour Court to have the arbitration award by Commissioner Moletsane reviewed and set aside.

According to the judgment, Willemse was fired in 2019 after he tested positive for alcohol intake three times. ‘The machines returned a 0.013% alcohol content, in violation of the company's zero-tolerance policy. Willemse denied he had consumed alcohol on the day he was dismissed or the night before and challenged his dismissal,’ reads the judgment. Willemse had been employed at Samancor from 2000. He was first tested twice on the same machine and then on a second, and the company relied on these results to dismiss him. A blood sample was then taken from Willemse and sent for testing but returned a negative result. A chemical pathologist testified that this blood test was more accurate than a breathalyzer because the latter ‘may be false in certain circumstances’.

These include if the person has not eaten for more than eight hours or consumed food that contained yeast. Willemse's doctor corroborated this, saying blood taken during a consultation also returned a negative result, reports TimesLIVE. Moletsane, in his ruling, referred to the pathologist's evidence that breathalyzer tests ‘may in certain circumstances produce false positive results’ and that the lab tests were more ‘reliable’. He also said while he understood the need for Samancor to use a method more ‘convenient for safety reasons’ to check for intoxication, the chairperson of the disciplinary hearing ought to have taken the laboratory results into consideration since those have more accurate and reliable results.

Samancor, in its application, contended that the CCMA's award stood to be reviewed and set aside because Moletsane ‘committed a gross irregularity in the conduct of the arbitration proceedings’ and ‘misconduct in relation to his duties as an arbitrator by ignoring and/or misconstruing relevant evidence, and that as a result, he reached a decision that a reasonable commissioner could not reach’. Judge André van Niekerk disagreed and upheld his ruling. Samancor's application was dismissed with costs.