Business Tech 

Source: https://businesstech.co.za/news/business/769615/testing-positive-for-cannabis-at-work-in-south-africa-what-you-need-to-know/

A zero-tolerance policy against the use of cannabis may infringe on an employee’s right to privacy and dignity, as a mere positive test for cannabis is not sufficient grounds to lead to a conclusion that an employee is impaired in the performance of their duties.

However, this is only given if the employee is not “‘stoned,’ intoxicated or impaired during work hours, on the premises, or if the employee was an employee who operates or works with heavy and dangerous machinery.”

This decision was reached in a recently settled Labour Appeal Court court case between Bernadette Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd.

The case was followed and subsequently analysed by ENS Africa legal experts Audrey Johnson, Kerrie-Lee Olivier and Tswelopele Ramokoka.

Background

The employer, in this case, strictly prohibits drug and alcohol use in the workplace, as per its Alcohol and Substance Abuse Policy, enforcing a zero-tolerance stance for employees entering the workplace under the influence of alcohol or drugs.

Upon arriving at work, the employer conducted a drug test, and the employee was found positive for cannabis.

After failing additional tests as outlined in the company’s policy, the employee was dismissed following a disciplinary hearing.

The employee argued that after the Constitutional Court’s decision in 2018, which accepted that it is not a criminal offence to use cannabis in the privacy of one’s home, she began using cannabis, which helped reduce her reliance on prescription medication and assisted with her anxiety and sleep disorder.  She also stated that she smoked cannabis every night and on weekends.

The Labour Court concluded that the company’s zero-tolerance policy on cannabis, applied to both cannabis and alcohol, was fair.

Despite being aware of the policy, the employee “continued to violate it,” and thus found her dismissal justified, based on her willful non-compliance, and determined it was not discriminatory, even considering the Constitutional Court judgement.

The employee then took the case to the Labour Appeal Court (LAC).

Labour Appeal Court

The LAC “had to determine, amongst other issues, whether the policy is discriminatory and, as such, whether the company subjected the employee to unfair discrimination which would render her dismissal automatically unfair,” explained the experts.

The ENS practitioners said that the LAC held that the zero-tolerance approach to testing positive for cannabis at work “resulted in the employee being unfairly discriminated against as it infringed her dignity by violating her right to privacy.”

This was for the following reasons:

• The employee tested positive for cannabis but was not impaired at work or in a risk-related role;
• The 2018 Constitutional Court judgment highlighted the employee’s right to privacy, including consuming cannabis at home;
• The employee used cannabis outside of work hours for recreation and to manage anxiety;
• Positive cannabis tests, due to longer bloodstream retention, do not prove impairment, contrasting with alcohol;
• Relying solely on blood tests for cannabis without signs of impairment infringes on the employee’s privacy and dignity;
• The company could not prove that the employee was impaired at work, questioning the zero-tolerance policy’s fairness;
• The policy was deemed excessive and a violation of the employee’s privacy rights;
• The LAC ruled the dismissal as automatically unfair, citing discrimination under the Employment Equity Act and the Labour Relations Act.

Important takeaways for employers

Johnson, Olivier, and Ramokoka said that this judgement presents key outcomes that employers should consider when creating their work substance policies.

• Enforcing a strict prohibition on cannabis usage might violate an employee’s rights to privacy and personal dignity;
• There needs to be a clear connection between enforcing a strict no-cannabis policy and ensuring workplace safety;
• Simply testing positive for cannabis does not automatically imply that an employee is unfit to perform their job duties;
• If an employer can demonstrate that testing positive for cannabis directly impacts an employee’s ability to safely carry out their job, a court may arrive at a different verdict than the abovementioned case.

“…The conclusion I have reached is merely a fact specific one based on this case and the nature of the Appellant’s job – it does not extend to every one of the Respondent’s employees, some of whom perform drastically more dangerous jobs, and for whom not being able to smoke cannabis at all – should they wish to continue their employment with the Appellant – may be more justified,” said the court.

“Accordingly, the application of a zero-tolerance approach to testing positive for cannabis contained in a workplace policy will have to be carefully considered going forward, and much will depend on the facts of a particular matter,” said the experts.