‘False and unreliable’: Court throws out breathalyser test, orders employee’s reinstatement

A mineworker fired for allegedly arriving at work drunk might get his job back after the Labour Court deemed his breathalyser results as false and unreliable.

However, a labour law expert said employers and courts rely heavily on these tests and won’t abandon them because of the court outcome.

The case was brought by mining company Samancor Chrome seeking to have the employee’s arbitration award reviewed and set aside.

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This came after an arbitrator held that the dismissal was substantively unfair, ordering that he be reinstated immediately.

Tested twice

The court heard how the employee was tested on arrival at work and the results came back as positive for alcohol.

The worker denied that he had consumed alcohol and was tested again with a different device.

The second test came out positive again, showing an alcohol content of 0.013%.

He immediately contacted his medical doctor who arrived and drew a blood sample from him for testing at a laboratory.

The laboratory test results found no traces of alcohol in his blood and he launched a case to get his job back.

‘False positive results’

Judge André van Niekerk upheld the arbitrator’s decision in his judgment this week.

Van Niekerk says that evidence showing that breathalyser tests were prone to give “false positive results” was corroborated in court.

“Pathologist Dr Broodryk testified that the blood test was more accurate and that breathalyser tests may be false in certain circumstances, for example, when the person had not eaten for more than eight hours, or eaten a substance with a yeast content.

“In his opinion, the result does not mean that the employee did not have any alcohol at all in his blood, it simply means that there was no blood alcohol content exceeding 0.010 g/dl, but for all clinical purposes, the result was negative.”

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The arbitrator was adamant that the employee’s disciplinary hearing ought to have taken the more accurate and reliable laboratory outcome into consideration, said Van Niekerk.

The company failed to prove misconduct by the dismissed employee, he added.

“In the absence of any reviewable irregularity in the arbitrator’s assessment of the evidence, the review is dismissed with costs”.

‘Employers won’t ditch breathalysers’

Reacting to the judgement, labour law expert Andrew Levy says breathalysers are a common and well-established practice in workplaces and in labour law.

He said the mining company was right to use a breathalyser and could win the case on appeal.

He said the judge’s take on breathalysers won’t make employers let go of the tests completely. It is just one judgment, there are many cases that uphold breathalysers, he added.

“They are used by law enforcement for traffic offences, and there are many judgments that uphold breathalyser tests.

“With respect to the judge, I can’t agree with him on this”.

Levy adds that the main issue should have been whether the company acted reasonably when dismissing the worker.

“This can be compared to lie detectors – they are not 100% accurate and are done because they are the best we have and are good indicators.

“Breathalysers also depend on physical factors – how big you are or not, your weight, and even the weather.

“One can get drunk on one whiskey drink while another might finish the whole bottle. It’s a variable thing”, Levy said.

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