Intoxication and testing positive

Employers are often confused when the chairperson in a disciplinary hearing finds an employee not guilty of being under the influence of alcohol, despite the employee having tested positive for alcohol on a breathalyser.  Intoxication is defined as when a person is “affected by alcohol or drugs especially to the point where physical and mental control is markedly diminished.”

Case law

One of the first judgements determining the meaning of intoxication in South African labour law is found in Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552, where the Labour Appeal Court held that an employee will only be regarded as being “under the influence of alcohol” if they are no longer able to perform the tasks entrusted to them with the required competence. In this case, the employee was responsible for operating a 32-ton truck, and the court found that he would not have been able to perform this task with the same degree of skill, care, and concentration as a sober person. The court confirmed that the appropriate test is whether the employee’s competence to perform their duties has been impaired.

In the years following the judgment, many employers have relied on positive breathalyser results to substantiate charges of intoxication in the workplace. Breathalysers function by analysing an exhaled breath sample to determine the Breath Alcohol Concentration (BrAC)—reflecting the level of alcohol present in the individual’s breath. While this method has often been accepted as indicative of alcohol consumption, recent case law has clarified that breathalyser results alone are not sufficient to prove intoxication or that an employee was “under the influence.”

Case law

In Tosca Labs (Pty) Ltd v CCMA and Others [2012] 5 BLLR 529 (LC), the employee tested positive on a breathalyser. However, the employer was unable to prove that the employee was under the influence of alcohol to the extent that his ability to perform his duties was impaired. The employee had been performing his tasks without incident, and there was no evidence that his competence or conduct had been affected. The Commissioner accordingly found the dismissal to be substantively unfair, and the Labour Court upheld this decision on review.

Case law places a greater evidentiary burden on employers seeking to prove intoxication, as opposed to merely establishing that an employee tested positive for alcohol. These two charges are distinct in both their meaning and their legal requirements. A positive breathalyser result may be sufficient to substantiate a charge of “testing positive,” particularly where a clear (and valid) zero-tolerance policy is in place and no contradictory evidence is presented. However, in cases where an employee is charged with intoxication or being under the influence, a breathalyser alone will generally be insufficient. At a hearing the employer must lead additional evidence, such as behavioural indicators and witness testimony, to demonstrate that the employee’s ability to perform their duties was impaired.

A recent example of a challenge to the charge of “testing positive” arose in Samancor Chrome Ltd v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023), where the Labour Court held that breathalyser results do not constitute conclusive proof of intoxication. In this case, the employee, who had tested positive twice on breathalysers, which the employee disputed and then had a blood sample taken by a medical professional which was sent  to a laboratory. The result was negative. The employee was dismissed in terms of a zero-tolerance policy despite producing the negative blood test at the disciplinary hearing. The Court found the dismissal substantively unfair, emphasising that breathalyser tests are permissible as evidence in disciplinary hearings and arbitration proceedings, but their evidentiary value depends on corroborative evidence (e.g. blood test, or physical observation) to prove that someone is under the influence of alcohol.

It is therefore critical that employers carefully consider the nature of the charge before initiating disciplinary action. It’s best to obtain advice from the beginning with implementation of the relevant workplace policies and procedures to the classification of charges when dealing with disciplinary hearings.

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