SA Case Law:
Samancor Chrome Limited (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023)
Review of arbitration award finding employee’s dismissal unfair – employee testing positive for alcohol on breathalyser tests in breach of zero tolerance policy – result of blood-alcohol test, together with expert evidence, did not definitively establish that there was alcohol in employee’s bloodstream – breathalysers less reliable and prone to giving false positives – evidence supported arbitrator’s assessment of probabilities and findings.
Key takeaways: (1) While breathalyser tests are a convenient way for employers to test compliance with their alcohol and drugs policies, they are not always reliable.
If contested by employees, it is advisable for employers to corroborate the results by way of other evidence (such as observation of behaviour and appearance, or the results of more accurate tests, blood tests), prior to taking adverse employment decisions, including disciplinary action.
(2) This case also highlights the difficulty employers may face when enforcing a zero-tolerance policy in circumstances where an employee has only a small amount of alcohol in the system.