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Article 1/2025

Is an employer able to prove a breach of a zero tolerance alcohol and drug policy where:

  • positive breathalyser test results are not supported by laboratory blood test
    results?
  • laboratory blood tests cannot test for blood alcohol below 0.010 grams per
    decilitre (g/dL)?

The approach adopted by the labour court in Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (2023) 34 SALLR 367 (LC) entails, in short, that, firstly, the adoption of a zero tolerance alcohol and drugs policy does not automatically create a ‘no go zone’ for arbitrators and the courts, entailing an automatic acceptance, without any further investigation, that an employee shall be deemed to be unfit to enter the premises of the employer (or remain on such premises) in the event of a positive alcohol (drug) test and, secondly, the difference in results obtained from breathalyser tests when compared to laboratory blood tests highlight the unreliability of breathalyser test results.

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In Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (2023) 34 SALLR 367 (LC), the employer adopted the following zero tolerance alcohol and drug policy:

In Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (2023) 34 SALLR 367 (LC), the employer adopted the following zero tolerance alcohol and drug policy:

‘This procedure applies to all employees at all levels. Western Chrome Mines subscribes to a policy of zero tolerance alcohol and drugs.

A person shall be deemed unfit to enter the premises in the event that their breath alcohol level exceeds 0.000% and if the drug test indicates any illegal substance…

The company shall take disciplinary action in all cases where an employee have [sic] tested positive for alcohol and/or drugs, this offence is viewed as gross misconduct and may lead to summary dismissal on the first offence.’

The employee in casu tested positive when the employer utilised its breathalysers(the Alcoblow Rapid device produced a green light, indicating positive alcohol content and, thereafter, the Lion Alcolmeter 500 indicated alcohol content of 0.013%).

The employee did not accept the above test results and had a blood test done – the plasma ethanol test was utilised and it indicated that the employee’s blood sample had no alcohol above 0.010g/dL. In confirming, on review, the arbitration award to the effect that the dismissal was substantively unfair (as well as the order of reinstatement with retrospective effect), the LC, per Van Niekerk J, adopted, amongst others, the following approach: the evidence of the expert witness, Dr Jaco Broodryk, was accepted, to the effect that breathalyser tests could provide false results, for instance, where a person had not eaten for more than eight hours or had eaten a substance with yeast content.

Laboratory blood test results are more reliable than any breathalyser test results – breathalyser test results are prone to producing false positive results.

Laboratory blood tests cannot test for blood alcohol below 0.010g/dL. It is, therefore, impossible for an employer to reliably prove that an employee’s alcohol content in his/her blood exists between 0.000g/dL and 0.009g/dL.

It is also important to realise that the test approach adopted in terms of s65 of the National Road Traffic Act 93 of 1998 entails the detection of alcohol above 0.05g per 100ml of blood and not below such.

An employer bears the onus of establishing that there had been alcohol in an employee’s bloodstream – in casu, the LC held that the laboratory blood test results and evidence of the expert witness indicated that the employee had produced negative results for any medical purposes.

Important considerations: the viewpoint is held that a mere positive alcohol or drug result in line with a zero tolerance alcohol and drugs policy does not necessarily, on its own, indicate that an employee is unfit to do what he/she is required to do. The approach adopted in the above judgment indicates a number of problems associated with such zero tolerance policy. The viewpoint is held that it is more appropriate to charge an employee with intoxication if such employee is tested positive and such intoxication affects the employee’s ability to perform – see, in this regard:

  • Transnet Freight Rail v Transnet Bargaining Council (2011) 22 SALLR 144 (LC)
  • Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC)
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?