Linton van Niekerk Attorneys

19/02/2024

23/01/2024

04/07/2023

The Constitutional Court has confirmed a Gauteng High Court ruling that Section 40 of the Children's Act is unjustifiably discriminatory on the basis of marital status and sexual orientation.

14/06/2023

Breathalyser results as evidence

For the past couple of decades, law enforcement and employers alike relied on breathalysers to determine whether alcohol is present in the bloodstream of an individual, detectable in the person’s breath. As a result of testing positive for alcohol on the breath of an employee, especially in zero tolerance workplaces, many employees have been dismissed in the past.

By Jan du Toit, Director at Labour Guide.
2023/06

It is important to distinguish between testing positive for alcohol on the breath of an employee and such individual being under the influence of alcohol. Being under the influence of alcohol implies that the individual was not capable of safely performing his duties. In this regard, the breathalyser reading or indication of alcohol on the breath of the test subject, will be considered in addition to other evidence such as witnesses testifying to the behaviour of the subject at the time of the breathalyser examination. In other words, did the employee display telltale signs of being under the influence of alcohol, such as:

- Slurred speech
- Bloodshot reddish eyes
- Droopy eyelids
- Overly aggressive, friendly, or emotional behaviour
- Unsteady stance
- Etc.

A recent non-reportable Labour Court judgement, and subsequent misguided media publications, have resulted in uncertainty among employers regarding whether the results of a breathalyser examination may still be used to establish guilt for wrongdoing in the workplace. According to some news articles, employers are no longer allowed to dismiss employees for testing positive for alcohol based on a breathalyser examination only. The aforementioned is misleading, as stated.

Read More...
https://labourguide.co.za/misconduct/other-misconduct/breathalyser-results-as-evidence/

10/06/2023

Lawyers argued successfully that the incident occurred at the receiving bay of the store where she worked, which was a private loading facility and not a public road – and therefore not covered by the RAF Act.

07/06/2023