ROUND 2 OF THE SAME PROBLEM
There has been an increase in cases where employee smoke cannabis the night before and the question are they still under the influence.
If your policy is silent you may end up paying money at the CCMA
I will be drafting an update for retainer clients to ensure that you are covered but the essence is that they are under the influence however their function fulfilled will be a determining factor
In the absence of a formal policy companies will face an uphill battle
Facts of case:
In the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022), two employees (Applicants) tested positive for cannabis whilst on duty.
The Respondent had a zero-tolerance policy on alcohol and drug abuse. The Applicants both pleaded guilty to the charge of testing positive for cannabis while in the workplace and were dismissed for misconduct. The Applicants referred the matter of unfair dismissal dispute to the CCMA disputing that their dismissal was unfair on the basis that, the Constitutional Court had legalised the use of cannabis on one’s private space. The Applicants were unhappy with the outcome and took the arbitration award on review at the Labour Court.
The Respondents case was based on the regulations of the Occupational Health and Safety Act and that they are very serious about safety and ensuring that the workplace is safe. The Respondent has a zero-tolerance in terms of testing for alcohol or drugs as it poses a high risk to themselves or their colleagues or the plant. The Applicants were aware of the Respondent’s policy on alcohol and drugs, but the Applicants argued that they did not contravene with the policy because they did not use drugs, but had used cannabis.
The Legal Issues:
Whether the dismissal of the Applicants was substantively fair?
Whether or not cannabis is regarded as a drug?
The Applicable Law:
The Drugs and Drug Trafficking Act defines a “drug” as “any dependence-producing substance, any dangerous dependence producing substance or any undesirable dependence-producing substance”. The Constitutional Court had only decriminalised the private use of cannabis but that the workplace was subject to the health and safety rules set out in the Occupational Health and Safety Act No.85 of 1993.
In the case of Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, the employee was using cannabis to improve her health and decrease her dependence on prescribed medications. The employee occupied a desk position, and she was not required to operate heavy machinery or to drive employer’s vehicles.
At the time the employee was tested for cannabis, she was not 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 colleagues. The employee was dismissed for repeatedly testing positive for cannabis and breaching the employer’s alcohol and substance abuse policy. It is evident that this case is not distinguishable from the Applicants case.
Reasons for the decision:
The Labour Court found that the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes. The Labour Court accordingly dismissed the review.
This case demonstrates that notwithstanding the decriminalisation of the private use, possession or cultivation of cannabis, employees may be dismissed for testing positive for cannabis while in the workplace, having regard to the nature of the workplace, provided that the employer has adopted a policy prohibiting the use of drugs in the workplace and that its employees have been made aware of such policy.
–CDH
