Breathalyser results as evidence

For the past couple of decades, law enforcement and employers alike relied on breathalysers to determine whether alcohol is present in the bloodstream of an individual, detectable in the person’s breath. As a result of testing positive for alcohol on the breath of an employee, especially in zero tolerance workplaces, many employees have been dismissed in the past.

By Jan du Toit, Director at Labour Guide.

2023/06

It is important to distinguish between testing positive for alcohol on the breath of an employee and such individual being under the influence of alcohol. Being under the influence of alcohol implies that the individual was not capable of safely performing his duties. In this regard, the breathalyser reading or indication of alcohol on the breath of the test subject, will be considered in addition to other evidence such as witnesses testifying to the behaviour of the subject at the time of the breathalyser examination. In other words, did the employee display telltale signs of being under the influence of alcohol, such as:

• Slurred speech
• Bloodshot reddish eyes
• Droopy eyelids
• Overly aggressive, friendly, or emotional behaviour
• Unsteady stance
• Etc.

A recent non-reportable Labour Court judgement, and subsequent misguided media publications, have resulted in uncertainty among employers regarding whether the results of a breathalyser examination may still be used to establish guilt for wrongdoing in the workplace. According to some news articles, employers are no longer allowed to dismiss employees for testing positive for alcohol based on a breathalyser examination only. The aforementioned is misleading, as stated.

In Samancor Chrome Ltd v Willemse (JR 312/2020), Mr. Willemse was dismissed for testing positive for having alcohol on his breath. He was dismissed on 25 March 2019 after being charged with having tested positive for alcohol on 22 February 2019. At the arbitration hearing, a security officer testified that on 22 February 2019, the employee arrived at work and was asked to take a breathalyser test on an Alcoblow Rapid device. The breathalyser indicated a green light, meaning a positive result. The employee questioned this result, and he was again tested using the same breathalyser, with the same result. The employee denied that he had consumed any alcohol either that day or on the previous evening. The employee was then breathalysed on another machine, the Lion Alcometer 500 by another security officer. The result was again positive and indicated an alcohol content of 0.013%. The security officer testified that the employer had a zero-tolerance rule for the use of drugs and alcohol in the workplace and that in terms of the policy, and any employee testing positive for alcohol after and obligatory test was liable to be dismissed.

The employee called his family medical practitioner, doctor Koekemoer as a witness during arbitration. He testified that the employee consulted him after he had been accused of consuming alcohol, that he took a blood sample from the employee and sent it to Ampath Laboratory.  The results came back negative.

A Chemical Pathologist, doctor Jaco Broodryk, testified as an expert witness for the employer. According to him the method used to determine the blood alcohol content in the sample was a plasma ethanol test, which cannot test for alcohol below 0.010g/dl. The report issued by the laboratory was negative. It indicated that the employee’s blood sample had less than 0.010 g/dl alcohol content. The pathologist further testified that the blood test was more accurate than a breathalyser test, and that breathalyser tests may be false under certain circumstances, for example, when the person tested had not eaten for more than eight hours or consumed any substance with a yeast content. In his opinion, the result of the test performed did not mean that the employee did not have any alcohol at all in his blood, it simply meant that there was no blood alcohol content exceeding 0.010 g/dl, but for all clinical purposes, the result was negative.

The arbitrator summarized the evidence and recorded the issue that he was required to decide, 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 laboratory conditions. The arbitrator concluded that he fully understood that the applicant is using a method that is convenient for safety reasons to check if employees are intoxicated but that the chairperson of the disciplinary hearing ought to have taken the laboratory results into consideration since those have more accurate and reliable results.

It is largely on this basis that the arbitrator concluded that there was no breach of the rule by the employee as the laboratory results, coupled with the expert testimony, confirmed that the employee tested negative for alcohol in his blood.

On review, the employer contended that the arbitrator’s award stood to be reviewed and set aside because he committed a gross irregularity in the conduct of the arbitration proceedings, that he committed 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. The latter is important to note.

In particular, the applicant submitted that the arbitrator misconstrued the nature of the inquiry and thus committed a gross irregularity. In support of this contention, the applicant submited that the arbitrator based his findings on a consideration of whether the employee was intoxicated or not. The employer submitted that the applicable policy, being one of zero tolerance, did not mean that it was necessary for the employee to be intoxicated for there to be a breach of the workplace rule. Further, the applicant submits that the nature of the applicant’s business justifies the zero-tolerance rule, and that it is not incumbent on the applicant to demonstrate that the employee was intoxicated or that he was unable to perform his contractual duties at the time. That was not the allegation for which the employee was dismissed; he was dismissed for contravening the zero-tolerance rule.

Further, the applicant submitted that the arbitrator misdirected himself regarding the expert evidence that was led. In the award, the arbitrator found that there was no alcohol in the employee’s system, based on his reference to the word “negative” indicated on the pathologist’s report. However, the pathologist testified that the word “negative” did not mean that the employee did not have alcohol in his blood. According to the employer, it was required to do no more than prove on the balance of probabilities that the employee committed the misconduct of which he was accused, namely, that he had a positive alcohol test result. On the balance of probabilities, it is highly improbable that two breathalysers gave a total of three false positive results and only in respect of the employee. It is highly improbable that on that morning, of a total of some 1000 employees that were tested, only the employee would have eaten bread containing yeast, or would not have eaten that morning.

In considering these submissions, Judge Van Niekerk held as follows:

“The references by the arbitrator to ‘intoxication’ aside, and appreciating the award as a whole, it does not seem to me that the arbitrator misconceived the nature of the enquiry that he was obliged to undertake. He states in paragraph 4 of the award that he is required to decide whether ‘the employee breached the rule or standard’. In his analysis of the evidence, the arbitrator records, at paragraph 29 of the award that the employee ‘was charged and dismissed for having tested positive for alcohol on the 22^nd February 2019 at the workplace’. The arbitrator’s finding, at paragraph 31 of the award, is stated in the following terms: ‘It is my finding that there was no breach of the rule by the Applicant, as the laboratory results coupled with the expert testimony, confirm that he did not have alcohol in his blood. All of these passages suggest that the arbitrator was fully aware that the employee had been dismissed for having alcohol in his blood, and not for intoxication, and that he was required to determine whether the employer had established this fact The only finding made by the arbitrator is one that the employee did not have alcohol in his blood; there is no finding regarding intoxication. It cannot be said therefore that the arbitrator misconceived the nature of the enquiry, or that the applicant was denied a fair trial.

Turning then to the applicant’s submissions in regard to what it contends are reviewable irregularities on the part of the arbitrator and the unreasonableness of the result, I am unable to find any misdirection by the arbitrator in his assessment of the evidence. The evidence discloses that after the breathalyser tests, the employee’s blood sample, analysed by the Ampath Laboratory, produced a negative result. Broodryk, the applicant’s expert witness, confirmed that the blood test was more reliable than any breathalyser test and that the negative result of the blood test was correct. Broodryk also confirmed that a breathalyser test is prone to producing false positive results. To the extent that the applicant challenges the arbitrator’s interpretation of the evidence relating to the inability of any blood test to measure any reading below 0.009 g/dl, it does not necessarily follow, as the applicant submits, that the arbitrator misdirected himself in determining the balance of probability.”

According to judge Van Niekerk, the arbitrator took a reasonable decision based on the evidence, and in the absence of a reviewable irregularity in the arbitrator’s assessment of the evidence, the review application was dismissed.

As a result of the court not finding fault with the arbitrator’s analysis of the evidence and reasoning, many news publications claimed that breathalysers can no longer be used to determine whether an employee consumed alcohol in contravention of company policy. The aforementioned is an incorrect interpretation of the judgement. The court was not required to rule on the admissibility of breathalyser test results or the accuracy thereof. The court was merely required to determine whether the arbitrator took a reasonable decision in favouring the evidence of the employee above that of the employer.

Respectfully it seems as if the employer’s presentation during arbitration resulted in the finding that the employee was unfairly dismissed. The testimony of the employer’s expert witness, Dr Broodryk (the Pathologist), proved to be fatal to the case of the employer. The employer failed to rebut the expert testimony of Dr Broodryk, which it introduced into evidence!

As per the arbitration award, the employer also failed to address the timeline after the employee was tested positive and when blood was drawn by his medical practitioner. The security officers testified that the employee was tested at 09:54 am. The employee’s medical practitioner testified that he consulted with him between 09:55 am and 10:05 am. Evidently this also required further exploration which was unfortunately not the case.

The seemingly ineffective rebuttal of the employee’s evidence during arbitration, combined with the employer’s evidence that favoured the case of the employee, resulted in a reasonable decision being taken by the arbitrator. With this, the court could not find fault.

Henk Wissing, a seasoned labour lawyer and Labour Guide presenter of our Review Applications course, appeared for the employee during review proceedings (not arbitration). Both Henk and the author of this article hold the view that breathalysers can still be used in workplaces. It is however recommended that proper evidence be led, confirming the accuracy, calibration and correct use thereof. It is further recommended that observations at the time of testing the subject be noted and confirmed by witnesses. In this regard video footage captured on a cellular telephone will also suffice.

In summary, the court was required to only determine whether the arbitrator took a reasonable decision based on the evidence adduced. The employer seemingly failed to effectively rebut the evidence of the employee at arbitration and introduced evidence to the detriment of its own case.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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