On the 29th of May 2023 the Labour Court handed down a judgment which will affect many employers and the way they need to approach employees suspected of being under the influence while at work.
A matter referred to the CCMA for unfair dismissal saw an award stating that the employee was unfairly dismissed, even after testing positive on 2 breathalysers, but blood results indicating a negative result. The award was then taken on review and the Labour Court had to make a call.
While the case was not about whether breathalysers are reliable or not, this case has highlighted the approach that has been adopted by the CCMA as well as the Labour Court when employers dismiss employees for being found under the influence through a breathalyser.
Summary of the Case:
- The employer had company policies and procedures identifying a zero-tolerance approach to being under the influence, stipulating:
“This procedure applies to all employees at all levels. Western Chrome Mines subscribe to a policy of Zero Tolerance alcohol and drugs. A person shall be deemed unfit to enter the premises in the event that their breath alcohol level exceeds 0.000 percent and if the drug test indicates any illegal substances... The company shall take disciplinary action in all cases where an employee has tested positive for alcohol and/or drugs, this offense is viewed as gross misconduct and may lead to summary dismissal on the first offense.”
- Furthermore, the disciplinary code provided the following:
“Employees are implored to refrain from influence of drugs, including alcohol. The company has a zero-tolerance approach towards drug/alcohol use in its workplace and will not hesitate to dismiss any employee who:
- has a positive drug (including alcohol) tested reading; or
- refuses to undergo a drug (including alcohol) test.”
- The employee arrived at work and underwent an Alcoblow Rapid machine test, which provided a green light, meaning he was positive for being under the influence.
- The employee underwent another test on the Lion Alcometer 500 machine, showing a score of 0.013%.
- The employee then had his blood withdrawn and tested – the results determined that he was negative. It was noted that blood tests would only pick up a positive result if the level was more than 0.009.
- The CCMA found that the employee was unfairly dismissed as there was sufficient evidence to prove breathalysers can provide false positives due to various circumstances and that the blood results were more accurate and should have been relied upon by the employer.
- The employer took the case to the Labour Court. Key takeaways from the judgment include:
- The Labour Court agreed with evidence that breathalysers are less reliable and can provide false positive results.
- While blood results only test positive if the alcohol level is 0.010 or more, there is no way to ascertain whether an employee who tests negative has a 0.009 reading or a 0.000 reading. It is therefore not fair to dismiss an employee when a blood test indicates a negative result.
What Does This Mean for Employers?
This case does not provide clear solutions for employers moving forward. We believe each case before the CCMA will depend on its own merits. We recommend employers take the following steps to mitigate an outcome like the one described above:
- If you suspect an employee is under the influence, ensure that at least two parties are present.
- Conduct an alcohol checklist form (please request one from us if you don’t have one).
- Conduct your breathalyser tests and record evidence of this.
- Update your company policies related to being under the influence:
- If alcohol levels are low, consider issuing a final written warning for the 1st offense, and the 2nd offense should lead to a disciplinary hearing.
- If alcohol levels are high, stipulate that a blood test must be taken to confirm results.
- If blood results indicate a positive reading, hold a disciplinary hearing.
- Note that while an employee may refuse to take a test, their right to privacy is not more important than the company’s right to ensure safety. In the case of Enever v Barloworld, the Labour Court confirmed that “as long as there is a reasonable policy in place, written within the bounds of the law, the policy must stand.” If an employee refuses to comply, they will be in breach of lawful instructions.
- If the situation is serious and you wish to request dismissal, ensure that a blood test is done.
Should you not be willing or prepared to take these extra steps, you can still proceed as per normal, but please understand that, as your trusted legal advisors, our recommendations are influenced by this recent case law to ensure a fair and sound decision can confidently be upheld at the CCMA.
If you have any further questions, queries, or concerns, please feel free to contact us to discuss further.