The recent Labour Appeal Court (LAC) decision in the case of Bernadette Enever vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC has sparked widespread debate within the labour law sector regarding the appropriateness of dismissals following positive cannabis tests in the workplace. This case marks a pivotal moment, and it necessitates an update to the previous analysis by the CEO in “Left High and Dry” in light of the latest judgment on 23 April 2024.

The LAC faced four primary legal questions:

1. Whether the Respondent unfairly discriminated between the Appellant and other employees.
2. Whether there was a direct link between the positive cannabis test and the Appellant’s dismissal, potentially constituting discrimination based on spirituality, conscience, belief, or an arbitrary ground under Section 187(1)(f) of the Labour Relations Act (LRA).
3. The fairness and non-discrimination of the Respondent’s policies on alcohol and cannabis use.
4. Whether the Respondent’s enforcement of these policies was demeaning, degrading, or humiliating, thus impairing the Appellant’s dignity.

The Court found the Appellant’s office-based role did not involve operating hazardous machinery or performing duties where impairment could pose a risk. This led to the assessment of the zero-tolerance policy against the Appellant’s right to privacy. The Court determined that while employers can set certain workplace standards, particularly under Section 8(1) of the Occupational Health and Safety Act (OHSA), this does not justify infringing on personal freedoms without substantial cause.

The Court declared the policy overly broad and discriminatory, highlighting a disparity in treatment between cannabis and alcohol users where no actual workplace risk is posed. The discrimination was not viewed as malicious but rather a misinterpretation of legal boundaries by the employer.

The LAC concluded that the dismissal was automatically unfair due to discriminatory practices, finding the Alcohol and Substance Abuse Policy irrational to the extent that it prohibits office-based employees from consuming cannabis in their private time. This does not apply universally across all positions within the company but is specific to roles like the Appellant’s that do not involve high-risk environments.

The Respondent was ordered to compensate the Appellant with twenty-four months’ pay at a rate of R43,199.75 per month. This landmark judgment should serve as motivation to employers to reevaluate their cannabis policies, ensuring they do not inadvertently discriminate against employees by enforcing blanket zero-tolerance policies. This case underscores the importance of considering the specific circumstances of each employee’s role when applying such policies.

Article by Zwelakhe Thwala

Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)