For years employers have made use of breathalyser tests to establish whether a person is intoxicated. The breathalyser test is generally accepted as sufficient proof that an employee is under the influence of alcohol. It’s important to note that what matters is not whether the employee is intoxicated, but rather it’s whether the employee is intoxicated to such an extent that he/she is not able to perform the required duties.
If an employee were to report for duty under the influence of alcohol, it is necessary to administer both a breathalyser test and complete a visual observation report. When administering the breathalyser test, please remember the following:
- Always have a witness present when the test is conducted;
- The test should be reliable and properly calibrated;
- The employee’s consent to undergo the testing should be obtained,
- The results must be shown to the employee and recorded in the presence of witnesses.
Once the test has been administered, in the presence of the witnesses, it would be advisable to complete a visual observation report.
In South African Transport and Allied Workers’ Union obo Mmotong v Staffing Logistics (2018) 27 NBCRFLZ – the Commissioner held that a breathalyser test is not definite, and the level of intoxication should be substantiated by additional evidence. In this case, the employee had 7 years’ service and a clean disciplinary record. He was charged with reporting for work under the influence of alcohol and was dismissed. The employer’s witness testified that the employer has a zero-tolerance policy against alcohol consumption. The employer argued that since the employee signed for the results of the breathalyser test, the employee has, in fact, admitted to alcohol being in his bloodstream. The employer failed to lead any corroborating evidence that would normally be found in the observation report. The breathalyser test signed by the employee was not sufficient.
Therefore, a visual observation report is very important, especially when an employee refuses to undergo a breathalyser test. The observation report should include things like whether the employee’s speech was impaired, whether the employee was steady on his/her feet, bloodshot eyes and smelling of alcohol. This report will work together with the breathalyser test to indicate that the employee is indeed under the influence of alcohol and his/her ability to perform normal duties has been impaired.
In Transport and Allied Workers Union of South Africa obo Dabula / Algoa Bus Company (2013) 22 SARPBC 8.11.1, the applicant was dismissed for being under the influence of alcohol whilst on duty. The breathalyser test was done, and despite the employee agreeing to the results, the employee denied that he was under the influence of alcohol, claiming he was fit to work. But no corroborating evidence existed, no observations were made, and the breathalyser test on its own was not reliable.
In summary, to answer the question posed in the beginning, yes, it is advisable for an employer to make use of a breathalyser test, but always ensure that you have witnesses present and corroborating evidence can be led to prove that the employee was under the influence of alcohol and unable to perform their duties.
Article by: Claire Turner
Provincial Manager – Durban