Worker fired for being drunk while actually sober

The issue of a breathalyser test for alcohol versus a blood test to determine any levels of alcohol came under the spotlight in the Johannesburg Labour Court after a worker at a mine was fired, although his blood test showed no traces of alcohol.Rickus Willemse had been working for Samancor Chrome, trading as Western Chrome Mines, for 19 years when he was suddenly fired. On arbitration, the mine was told to reinstate him, but unhappy with this finding, the mine turned to the labour court.

The issue was that the mine has zero tolerance for alcohol and drug use by its workers when on duty. The policy deems a person unfit to enter the premises in the event that their breath alcohol level exceeds 0,000%.

Willemse arrived at work and was asked to take a breathalyser test on an Alcoblow Rapid machine, which indicated a green light. He was also tested on the Lion Alcometer 500, which indicated an alcohol content of 0,013%.

This was the start of his problems and his legal journey.
In terms of the company’s policy, anyone who tests positive for alcohol or drugs is viewed as being guilty of gross misconduct and fired. But the problem in this case was that Willemse was adamant that he had not touched any intoxicating substances.

He was fired in March 2019 after being charged with having tested positive for alcohol. At the arbitration hearing, a security officer testified that when Willemse arrived at work at the time, he was asked to take a breathalyser test on an Alcoblow Rapid machine.

The breathalyser indicated a green light, meaning a positive result. Willemse questioned this result, and the security officer tested him again on the same breathalyser, with the same result. Willemse denied that he had consumed any alcohol either that day or on the previous evening. He was then breathalysed on another machine, the Lion Alcometer 500.

The result was again positive and indicated an alcohol content of 0,013%.

A chemical pathologist testified that a blood sample drawn from Willemse was sent to Ampath Laboratory to test for the presence of alcohol in his blood.

The report issued by the laboratory was negative.
The pathologist testified that the blood test was more accurate than a breathalyser test, and that breathalyser tests may register false positives in certain circumstances.

For example, he said, when the person tested had not eaten for more than eight hours or had eaten any substance with a yeast content.
Willemse testified that he was fully aware of the mine’s zero tolerance policy and said that he did not consume alcohol on the day in question or on the evening before.

The arbitrator, earlier, in ordering the mine to reinstate Willemse, referred to the evidence of the pathologist that a breathalyser test may, in certain circumstances, produce false positive results and that the more reliable test is that of a blood sample tested in laboratory conditions.

The arbitrator concluded that he fully understood that the mine was using a method that was convenient for safety reasons to check if employees were intoxicated.

But, the arbitrator said, the chairperson of the disciplinary hearing ought to have taken the laboratory results into consideration since those gave more accurate and reliable results.

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 Willemse did not have alcohol in his blood.

The mine, however, persisted that the arbitrator’s findings were wrong and that the labour court should overturn it. But judge Andre van Niekerk said the arbitrator was correct in his findings.
He subsequently turned down the mine’s review application. -IOL