Labour Court Judge Upholds Factory’s Rights to Fire Workers Who Test Positive for Cannabis Even if They are Not Impaired
Judge Connie Prinsloo says a company is entitled to a “zero tolerance” approach, even though there may be no presenting impairment. She ruled that PFG Building Glass was in its rights to dismiss two factory workers on cannabis charges and criticized the dismissed workers for their muddled thinking that cannabis was somehow legal, despite the Drugs and Drug Trafficking Act.
7 December 2022 at 09:00:00
Johannesburg Labour Court Judge Connie Prinsloo tore into two factory workers who tried to challenge their dismissal for testing positive for cannabis at work. The two men, said that in the light of the Constitutional Court ruling, cannabis was no longer a drug but a plant. This assertion, said the Judge, had no basis in law, and upheld their dismissal on 1 December 2022.
This is not at all what the Constitutional Court judges intended when they passed the 2018 ruling, said Judge Prinsloo, who said the Drugs and Drug Trafficking Act still stood even though the rights of individuals to consume cannabis in private had been held.
According to News24, she accused the two applicants, Nkosinathi Nhlabathi and Zukile Mthimkhulu, of being “opportunistic”, saying their lawyer had buit their case on erroneous legal precedents.
The two had been dismissed from PFG’s Springs plant in 2020 after pleading guilty to a charge that they tested positive for cannabis.Nhlabathi testified that the company was wrong to dismiss him 'because dagga is “lawful and it is right for someone to smoke it in a private space because I was also smoking dagga in a private space” and that he did not have a dependency problem'.
PFG’s policy says the sanction for failing a workplace drug test is always dismissal, because anyone whose abilities are impaired could be a danger to themselves and others while working with gas, large forklifts, furnaces and dangerous chemicals and that’s why the two manufacturing operators were fired.
Judge Prinsloo said the men’s understanding of the ConCourt decision was either “very limited or totally wrong”, “They moved from a wrong premise when they approached their case as one where dagga was no longer to be regarded as a drug and thus automatically excluded from [their employer’s] alcohol and drug policy.”
Nhlabathi testified that he tested positive in March 2020 even though it had been three days since he smoked dagga. Mthimkulu said he was aware of PFG’s alcohol and substance policy, but he said it was silent on dagga.
“Whatever he did with dagga, he did it at home and not when he was at work,” said Judge Prinsloo, summarising his evidence.
It was clear, she said, that Nhlabathi and Mthimkulu confused the decriminalisation of dagga for private use and an employer’s right to act against workers who contravened a disciplinary code.
“Mr Mkoko was fixated on the fact that it was no longer a crime to use dagga, and in the process of posing questions he made several misleading statements and propositions which are not to be found in the cases he relied upon,” she said.
There is no policy that could have dismissed [the men] because there is nothing talking to the issue of the dagga, simply because today dagga in South Africa is legalised.
“It is legalised for an individual to use for personal consumption in his private space, and there is nothing that forbids the individual to come and work.”
“The Constitutional Court did not interfere with the definition of a ‘drug’, nor did it declare dagga or cannabis to be a plant or a herb.”
And the judgment did not offer any protection against disciplinary action if employees contravened company policies or disciplinary codes.
“In my view, it matters not that the [men] used dagga in private, that they posed no danger on the day they tested positive, that their period of employment was not insignificant or that they had a clean disciplinary record,” she said.
“A zero-tolerance policy is one that does not allow any violations of a rule".
"Dismissal was an appropriate sanction" she ruled, but made no order on costs.
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