The dismissal of a machine operator who refused to take a breathalyser test (in accordance with the company’s policy on substance abuse and the refusal of an employee to be tested) was found to be procedurally and substantively fair.

WAR obo Thapelo Piet Mbele v Reinforce Steel Contractors (MADA59237) [2022]

Case summary

The applicant was employed as a machine operator at a steelworks, but his employment was terminated in August 2022 after an internal disciplinary hearing, during which he was accused of refusing to take a breathalyser test when his colleague and supervisor found that he had the smell of alcohol on his breath while operating heavy machinery at work. The applicant then referred a dispute to the Metal and Engineering Industries Bargaining Council (MEIBC), claiming that he had been unfairly dismissed.

An arbitration hearing was held in November 2022 under the auspices of the MEIBC.

According to the three witnesses called by the respondent, the applicant had a strong odour of alcohol on his breath when he reported for night shift. This was only noticed about two hours into his shift, when he came into close contact with a colleague. The colleague reported it to a supervisor, who arranged for both the applicant and his colleague to take a breathalyser test. The colleague took the test and passed, but the applicant refused the breathalyser test. The supervisor instructed the applicant to remain in the kitchen for the rest of the night shift because it was not safe to leave the premises at that late time of night.

Over the course of the disciplinary hearing and the arbitration, the applicant gave three different reasons for having refused the test. First he claimed that breathalysers were discontinued due to Covid safety measures, then he claimed that the supervisor had a bad attitude when requesting him to take the test, and then he claimed that the supervisor had told him, in essence, that his days at the company were numbered, predicting his dismissal within three months. The respondent company did not accept these inconsistent excuses for refusing a breathalyser test as company policy is very clear about substance use and refusing substance testing.

What made this misconduct serious is the safety hazard presented to the applicant, his colleagues and the type of heavy machinery the applicant was using. The company is very pro-active about safety measures, and holds a monthly safety refresher and a weekly safety talk for all employees. The respondent explained that their policy on substance abuse is always to assist employees experiencing substance-related problems.

The applicant requested, before the commencement of the arbitration hearing, that the arbitrator recuse himself, as the applicant did not believe that he would be allowed to express himself freely to the arbitrator, for unknown reasons. The proceedings had not even started when the applicant made this assertion, so there was no logical reason to come to this conclusion. The representative for the respondent objected to the request and it was subsequently denied.

The applicant remained unwilling to admit to any wrongdoing and the arbitrator felt, based on the weight of the evidence, that he was a possible danger to his company, his colleagues and himself. 

The dismissal of this applicant was found to be substantively and procedurally fair, and the case was dismissed.

Issued by Labour Guide