Goba and Clubland (2002) 23 ILJ 1300 (CCMA)

Principle:

As a CCMA commissioner may not be prepared to take judicial notice of (ie accept without proof) the correctness of a breathalyzer reading, employers may have to lead evidence of the nature of the device, whether the test was properly administered, the qualifications of the tester, and the significance of the reading.

Facts:

The employee was dismissed for being under the influence of alcohol at work. The employee had taken a breathalyzer test, which gave a reading of 0,38%. The employee denied drinking and challenged the fairness of his dismissal. The CCMA found that the employer had not discharged the onus of showing that the dismissal was fair, and reinstatement was ordered.

Extract from the judgment:

[Having found that the case fell or stood on the results of the breathalyser test] Now it may be so that the instrument which was used in this test was an instrument of proven or accepted reliability, and that it was in proper working order at the time, and that it was properly calibrated... However I was not given any expert evidence whatsoever concerning these matters... Given the manner in which the case for the respondent was presented, it appears that it was assumed that I would be taking judicial notice of a range of matters concerning the correctness of the reading. In my view this assumption was not justified. This type of evidence, which is sometimes called machine generated evidence, can only hold good if it is properly presented by a person who is an expert in the field.