Exactics-Pet (Pty) Ltd v Patelia NO & others (2006) 27 ILJ 1126 (LC)

Principle:

In an internal disciplinary hearing an employer can establish intoxication both by observations of an employee’s behaviour and a breathalyzer test, even though neither can establish with certainty how much alcohol has been consumed.

Facts:

An employee was dismissed following charges of being intoxicated at work. He had smelt of alcohol, swore and was incoherent. A breathalyzer test was taken which established that the alcohol in his bloodstream was well above the permissible statutory limit. An arbitrator had disregarded the breathalyzer test and had found that the dismissal had been unfair because there was insufficient evidence establishing intoxication, particularly as the employee had returned to work in the two hours before the results of the test came out.

The Labour Court held that as there was no evidence suggesting that the breathalyzer test was defective or inaccurate, the arbitrator should have accepted the results as reliable evidence. The arbitrator had set the standard of proof too high – an employee does not have to be tested by police to establish intoxication. Where an employer uses two tests – the observation test and the breathalyzer test, this will be sufficient to establish intoxication even though the employer cannot prove how much alcohol had been consumed.

Extract from the judgment:

[At 1132A]   Since the arbitrator was prepared to hold that the crystals in the breathalyzer test had indeed changed colour, and since there was no evidence before him to suggest that the test was defective, or inaccurate, he ought at least to have accepted that, on the strength of the breathalyzer test, there was a presence of alcohol in the [employee’s] system at the time the test was administered.

In my view, the arbitrator set the standard of proof from an offence such as the one in question far too high. The arbitrator’s reasoning seems to suggest that every time an employee is suspected of being under the influence of alcohol, he should be taken outside the premises and tested by the police…

The arbitrator effectively dismissed, in its entirety, the value of the evidence procured by way of the breathalyzer and then thereafter he concluded that the physical observations alone were not sufficient to support the [employer’s] contention that the [employee] was under the influence of alcohol.

The [employer] had an almost overly cautious approach to the matter. It relied on two methods of determining the sobriety of the [employee]. What the arbitrator had done was to set an almost impossible standard of proof on both of the methods employed by the [employer]. He overlooked the fact that, although the breathalyzer test could not establish precisely how much alcohol the [employee] had consumed, it was a reliable indicator that the [employee] had consumed some alcohol and would not legally have been entitled to drive.