Stoners may be exempted from zero-tolerance policy

With the well-known Prince-case finding that it is unconstitutional for the state to criminalise the possession, use or cultivation of cannabis by adults for personal consumption, the perception has arisen that this freedom extends to the workplace and that it is also discriminatory and unfair to dismiss an employee that tests positive for the use of cannabis as a result of reporting for duty under the influence of drugs. In this article, we look at to what extent the Prince-freedoms have also found their way into the workplace.

In April 2020, a private company whose core business includes the provision and servicing of earthmoving equipment and power systems in the mining, civil engineering and related sectors dismissed an employee who had been charged for testing positive for cannabis and the continued use thereof. When testing positive, the employee was not impaired in the performance of any of her duties; she worked in an office and her job did not entail operating dangerous machinery nor was she required to drive or perform any duty where the impairment of cannabis would present a risk to her or others in the workplace.

The employee pleaded guilty to the charges and in mitigation of the sanction to be imposed, explained that she has seen the benefits from using cannabis, which is, she no longer suffered from anxiety; experienced better sleep and no longer relied on the prescribed medication that caused her side- effects.

The employee informed the company, through her legal representatives, that the company’s policy was discriminatory and unfair because it differentiated between cannabis and alcohol users. However, the company did not accept this assertion. 

The unfair dismissal dispute was referred to the CCMA and could not be resolved. The employee turned to the Labour Court for relief. There, the court was called upon to decide the following four questions in relation to the employee’s dismissal: 

1. whether there was differentiation between the employee and other employees regarding the policy; 
2. whether there was a direct causal link between her positive test and dismissal, thus constituting an act of discrimination against the employee’s spirituality, conscience, belief or an arbitratry ground; 
3. whether the policies were unfair and discriminatory; and 
4. whether the company impaired the employee’s dignity by adopting an insulting, degrading and humiliating approach.

The Labour Court found, amongst others, that the company had valid reasons to dismiss the employee based on her wilful violation of the policy. The court also held that the Constitutional Court’s decision to decriminalise the use and possession of cannabis was found not to have made any difference to the consequences of testing positive in the workplace, even in circumstances where an employee smoked at home but the cannabis remained in their system even after they were no longer affected by the cannabis.

The employee was aggrieved by this decision and turned to the Labour Appeal Court and the court decided the following on the same issues that were before the Labour Court:

 

 1. There is a direct causal connection between the positive test and the dismissal of the employee.
2. The link between the dismissal and cannabis use was not because the employee’s religious or spiritual views caused her to smoke cannabis, thus there was no discrimination on religious grounds.
3. In respect of the differentiation against alcohol and cannabis users within the company, the court found that the employee was not differentiated from alcohol users as all employees who tested positive for either alcohol or cannabis were sent home to get clean. The use and not intoxication was the measure used for determining the breach of the policy, therefore there was no differentiation.
4. And finally, in respect of the claim that the employee was discriminated against and her privacy invaded through the imposition of the policy, the court found that the use of a blood test alone without proof of impairment on the work premises was a violation of the employee’s dignity and privacy. The policy prevented the employee from engaging in conduct that is of no effect to the company and yet, the company is able to force her to choose between her job and the exercise of her right to consume cannabis.

 

The court held that the Constitutional Court decision in Prince does not involve labour matters but the significance of the decision implicates the nature of the right to privacy, which all employees have. An employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies.

Importantly, it should be cautioned to see this decision as giving employees carte blanche on the use of cannabis. The decision does not. The court clearly pronounced that its decision would have been different for an employee who was found to be “stoned”, intoxicated or impaired during work hours on the premises or if it was an employee who operates or works with heavy and dangerous machinery.

Unlike alcohol, cannabis stays longer in the blood system. Thus, it is arbitrary to apply a zero-tolerance policy to employees who work in safe areas or where there is a lower or no risk to the employer or workplace. In other words, the policy adopted by the company was found to have been too broad and infringed on the employee’s right to privacy.

Although not a blanket approval of cannabis use, the judgment directs employers to revisit their policies to ascertain whether they are arbitrary and/or unfairly discriminate against employees who smoke cannabis outside the workplace. Employers are encouraged to not delay and make contact with their attorneys or labour specialists for assistance with such a review.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 

June 27, 2024
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