Article by: Durban Attorney: FAWZIA KAHN NAME
Many employers enforce strict zero-tolerance policies on alcohol and drugs, often requiring daily or random testing. But here’s the catch: a positive breathalyser alone isn’t enough to justify dismissal.
That’s exactly what played out in the case of Mr. Willemse from Samancor Chrome. The company’s policy was clear—test positive, or refuse a test, and you’re out. Willemse took a breathalyser test. Positive. He took another. Still positive, showing 0.013% alcohol concentration.
But he didn’t stop there.
A blood test was done - and the results told a completely different story. The lab found less than 0.010 g/dl of alcohol. In other words: effectively negative.
At arbitration, an expert explained that breathalysers can produce false positives - sometimes from something as simple as ingesting yeast-based products. Blood tests, on the other hand, are far more reliable.
The arbitrator sided with Willemse: no alcohol in his blood meant no breach of policy.
The employer wasn’t satisfied and took the fight to the Labour Court, arguing that even a breathalyser positive was enough to violate workplace rules—intoxicated or not.
The court disagreed. It made it clear: if a blood test is negative, an employer cannot rely solely on a breathalyser result to justify dismissal. The arbitrator’s decision stood - fair and reasonable.
The takeaway?
Know your rights. A single test doesn’t always tell the full story - and the law expects employers to get it right before taking action.
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