In South Africa, the use of alcohol and the right to a safe working environment are regulated in terms of the Occupational Health and Safety Act (OHSA).  This Act places a significant duty on employers to maintain a safe and healthy working environment, which prohibits employees from being under the influence of alcohol or drugs while performing their duties in the workplace.  Employers are reminded that a positive breathalyser test simply shows that alcohol is present, which does not necessarily prove that an employee is impaired, intoxicated or under the influence.

Breathalyser tests are screening tools and should not be deemed to be precise scientific instruments capable of conclusively proving intoxication or blood alcohol levels.  External factors, including calibration, time of testing, recent use of mouthwash, medication, or even some food items, can affect results, resulting in ‘fake positives’ for alcohol.  Testing positive on a breathalyser does not necessarily mean the employee was under the influence or intoxicated in the legal sense.

Employers should not rely solely on the breathalyser test result, without any further corroborating evidence of intoxication or being under the influence of alcohol.  Employers have an additional duty to go further when charging an employee for being under the influence of alcohol.  Employers must prove the impairment of an employee, particularly relating to the effects of alcohol.  Additionally, employers must note and keep a record of supplementary factors, which should include slurred speech, shaky and erratic movement, and the smell of alcohol, as influential indicators of being “under the influence.”  These supplementary factors will be essential evidence that will be required to be led during disciplinary hearings and CCMA proceedings in order to prove that the employee was under the influence of alcohol.

There are differences in terms of alcohol-related disciplinary charges, and the requirements to prove them also differ.  Employers should consider the employee’s conduct, the disciplinary code requirements, and formulate the charge accordingly.  Should an employee be suspected of being under the influence of alcohol or intoxicated in the workplace, a breathalyser and additional factors must be recorded.  This is not the same as ‘testing positive for alcohol’, which is simply a test result without external factors speaking to an employee’s behaviour.