The Constitutional Court’s limited legalisation of personal cannabis use in private seems to have lulled some employees into a false sense of security when it comes to their employer’s right to restrict their cannabis use.
A recent Labour Court decision of Enever v Barloworld Equipment, a division of Barloworld South Africa (PTY) Ltd (JS 633/20;JS926/20)  ZALCJHB 161 illustrates.
Not stoned on duty, but tested positive
An employee was, in her off-duty hours, a regular user of CBD oil and a smoker of cannabis.
After repeatedly testing positive for the drug, she was dismissed. She approached the Labour Court claiming both unfair discrimination and automatically unfair dismissal. Her failure to win reinstatement on either ground is a warning to all employees in her position.
Here are the facts the Court considered, and its decision –
Her position was a “typical office or desk position” which was not a safety sensitive job in that she was neither required to operate heavy machinery nor drive any of her employer’s vehicles. However, she worked on premises with “highly dangerous operations”.
She had thirteen years of service and an unblemished disciplinary record.
She had been prescribed medication for pain and anxiety, but due to the medication’s side effects she switched to daily use of CBD oil, plus she smoked cannabis recreationally to assist with her insomnia and anxiety. This, she said, also improved her bodily health, outlook, and spirituality.
As part of its safety rules, and because of the “highly dangerous operations in its premises”, her employer has a zero-tolerance “Alcohol and Substance Policy”, of which she was aware, enforced by workplace testing.
When she tested positive for cannabis use, she was told that she was unfit to continue working and directed to immediately leave the premises, then placed on a 7-day “cleaning up process” in terms of which the test would be repeated on a weekly basis until she was cleared by testing negative.
She was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of cannabis would be said to be a risk to her own safety or that of her fellow employees. Nor was she in possession or suspected of being in possession of cannabis whilst at work.
Nevertheless, when she continued to use cannabis, and therefore continued to fail her drug tests, she was dismissed after a disciplinary hearing at which she pleaded guilty to testing positive for cannabis. In mitigation she had said that she was never “stoned” or intoxicated or impaired at work, and that her use of cannabis was medicinal.
Unlike alcohol, cannabis can be detected in the body for a few days after occasional consumption, up to weeks for heavy users and up to months for chronic users. Also, unlike alcohol, one cannot determine a level of impairment based on test results.
But – and these were critical findings by the Court – “Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature” and “… the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employer’s policy.”
The employee continually tested positive, and would continue to test positive, because of her repeated and daily consumption of cannabis. Her performance had not been affected by her actions, but the employer’s issue was not one of performance but one of misconduct “and her performance is an irrelevant factor.”
There was no differentiation in the employer’s treatment of this employee and other employees, and in any event any such differentiation did not amount to impermissible discrimination as it was not arbitrary but “rational and served a legitimate purpose”.
She had only raised the question of her medical issues when caught out and as an “afterthought” but had had a responsibility “to properly approach the [employer] in order to raise her medical circumstances and for the [employer] to properly afford her situation an ideal and practical resolution.” In any event, said the Court, there was no “persuasive evidence” of her medical condition.
A final written warning would have served no purpose as she refused to stop consuming the cannabis.
Her dismissal therefore stands.
Lessons for employers
Have in place a clear and reasonable policy on intoxicating substances. As the Court put it in general “everyone is entitled to use cannabis in their own space and for recreational purposes” so you are going to have to justify any policy with an effect to the contrary. The “highly dangerous operations” in this employer’s premises no doubt played a significant part in the Court’s acceptance of this employer’s zero-tolerance approach to infringements of its safety rules, so tailor your policy to your particular business operations.
React reasonably to any request for a relaxation of your policy, don’t discriminate in any unjustifiable way between employees breaching it, and be sure to apply the appropriate sanction in cases of breach.
Most importantly, as always take specific legal advice – our employment laws are complex, and the penalties for breaching them severe.