In the case of SAMANCOR CHROME LTD (WESTERN CHROME MINES) V WILLEMSE AND OTHERS (JR312/2020) [2023] ZALCJHB 150 (29 MAY 2023) the employee was dismissed on 25 March 2019, after 19 years of service, after testing positive for alcohol on 22 February 2019.

The employer subscribed to a policy of Zero-Tolerance for alcohol and drugs. The policy further stated that 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, any employee who tested positive for alcohol and/or drugs would be subject to disciplinary action.

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 machine which indicated a positive result. The employee questioned this result as he denied consuming alcohol that day or the previous evening. He was tested again on the same breathalyser which produced the same result.  The employee was tested with another breathalyser, the Lion Alcometer 500. The result was again positive and indicated an alcohol content of 0.013%.

The employee had blood tests analysed which were deemed to be more accurate than a breathalyser, these results were negative i.e. it indicated that the employee’s blood sample had less than 0.010 g/dl alcohol content.

The Arbitrator referred to the evidence that a breathalyser test may produce false positive results, and that the more reliable test was that of a blood sample tested in a laboratory. He thus concluded that there was no breach of the company’s drug and alcohol policy.

The employer contended that the Arbitrator’s award stood to be reviewed and set aside, stating that the Arbitrator ignored and/or misconstrued relevant evidence thus reaching a decision that a reasonable Commissioner could not reach. The employer submitted that the applicable policy did not mean that the employee needed to be intoxicated for there to be a breach of the workplace rule.

Appreciating the award as a whole, the LC concluded that the Arbitrator did not misconceive the nature of the enquiry that he was obliged to undertake. That the evidence, coupled with the testimony by a Doctor that the sample provided by the employee produced a negative result, and that breathalyser tests were capable of producing false positive results in some circumstances, supported the Arbitrator’s assessment of the probabilities and also his finding.

The application was dismissed, with costs.