This report from Bowmans, published 25 April 2024.

OVERVIEW

• What happens when the private use of cannabis at home results in an employee presenting themselves in the workplace and testing positive for cannabis?

• The Labour Court grappled with this question and dismissed the Appellant's case.

• The Labour Appeal Court has now set aside that finding of the Labour Court.

• This article unpacks the decision in Enever v Barloworld Equipment South Africa, a Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC (23 April 2024).

In the recent case of Enever v Barloworld Equipment South Africa, a Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC (23 April 2024), the Labour Appeal Court (LAC) set aside the order of the Labour Court where it was held that the dismissal of an employee who tested positive for cannabis in the workplace was fair.

Since the Constitutional Court’s decision in Minister of Justice and Constitutional Development and Others v Prince, it has been a known fact that it is not a criminal offence for adults to cultivate, possess and use cannabis in the privacy of their homes.

However, what happens when the private use of cannabis at home results in an employee presenting themselves in the workplace and testing positive for cannabis? The Labour Court grappled with this question and dismissed the Appellant’s case. The LAC has now set aside that finding of the Labour Court.

Background facts

Ms Berndadette Enever (Appellant) was employed by Barloworld Equipment South Africa (Respondent) as a category analyst. The Respondent has an Employee Policy Handbook which incorporates the Respondent’s zero-tolerance approach to the possession and consumption of drugs and alcohol in the workplace (Policy). By accepting and signing the Handbook, the Appellant agreed to random, voluntary and scheduled drug testing.

On 29 January 2020, the Appellant was required to undergo medical testing, including a urine test. The Appellant’s results came back positive for cannabis, and she was sent home.

The Respondent subjected the Appellant to a disciplinary hearing where she pleaded guilty and was summarily dismissed on 30 April 2020. After her dismissal, the Appellant referred an automatically unfair dismissal and unfair discrimination dispute to the Labour Court in terms of which she alleged that the Respondent had unfairly discriminated against her by applying the zero-tolerance approach and as a result, her dismissal was automatically unfair.

The Labour Court ultimately found that the Appellant had wrongly elected to pursue a case of unfair discrimination where discrimination was not present. The Appellant’s dismissal arose from normal misconduct which is a matter that falls out of the jurisdiction of the Labour Court to decide on a basis of first instance. Further, the Appellant’s wilful breach of the Policy amounted to misconduct and a sanction of dismissal was correct under the circumstances. The 

Appellant referred the matter to the LAC on appeal.

Findings of the LAC

The LAC had four issues to determine, namely:

• whether      the Respondent differentiated between the Appellant and its other      employees;

• whether      there was a direct causal connection between the Appellant testing      positive for cannabis and her dismissal, which constitutes ‘an act of      discrimination against her based on her spirituality, conscience and      belief, alternatively, on an arbitrary ground in terms of section      187(1)(f) of the LRA’;

• whether      the Policy was unfair and discriminatory; and

• whether      the Respondent’s approach was insulting, degrading and humiliating and an      impairment of the Appellant’s dignity.

The LAC did not deal with the issue as to whether there was a direct causal connection between the Appellant’s positive test and her dismissal as this was accepted by the Respondent.

In determining whether the Appellant was subject to unfair discrimination on a listed ground, the LAC interpreted ‘spirituality’ to be synonymous with the listed ground of religion. The LAC agreed with the Labour Court that the link between the Appellant’s dismissal and the use of cannabis was not because of her spiritual views, conscience or beliefs in that she admitted that she smoked cannabis recreationally.

When determining whether the Policy differentiated between alcohol and cannabis users on an arbitrary ground, the Appellant was required to show that there was an impairment to her human dignity in a comparable manner to discrimination on a listed ground.

Whilst alcohol and cannabis users were subjected to the same treatment by being sent home if they tested positive, alcohol users could return to work the following day and test negative. However, this would not be the case for cannabis users as cannabis has been found to stay in the body for a longer period. A positive cannabis result thus does not address the sobriety of the cannabis user and whether they are impaired from carrying out their duties.

The Appellant submitted that she faced discrimination as a cannabis user which impaired her dignity by violating her right to privacy (specifically to use cannabis in the privacy of her home) and ‘subjecting her to a humiliating process that portrayed her as a junkie’ when testing positive for cannabis did not mean that she was impaired in the performance of her duties.

The LAC stated that the decision in the Prince case impacted on the nature of an employee’s right to privacy and that an employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies.

Whilst employers may have justifiable occupational health and safety reasons to bar certain conduct of its employees, the LAC found that this was not a justifiable reason for the infringement of the Appellant’s right to privacy. In reaching this conclusion, the LAC reasoned that:

• the use of a blood test alone without proof of impairment on the work premises      is a violation of the Appellant’s dignity and privacy;

• the Policy prevented the Appellant from engaging in conduct that is of no      effect to the Respondent;

• the Policy placed the Appellant in a situation where she was forced to choose      between her job and the exercise of her right to consume cannabis; and

• the Respondent could not show that the Appellant’s work was adversely affected      or that she created an unsafe working environment for herself or fellow      employees.

The LAC stated that while the Respondent did operate in an environment with heavy machinery, the Policy was unjustifiably overbroad, and the same standards could not be applied to an employee who works in an office outside of the dangerous environment.

The LAC did not accept that the zero-tolerance rule was justifiable because the Respondent had a generally dangerous working environment or that it was an inherent requirement of the job not to consume cannabis.

In this regard, the LAC upheld the appeal, and her dismissal was found to be automatically unfair on the basis of unfair discrimination. The Appellant was awarded 24 months’ compensation.

Key takeaways

The LAC essentially found that because cannabis stays in the body much longer than alcohol, the only way the Appellant could comply with the Policy is by not smoking cannabis at all. This meant that she had to choose between her job and her right to smoke cannabis in private. Essentially, the Appellant had been dismissed for intoxication in circumstances where she was not intoxicated. That the employer had a zero-tolerance approach was irrelevant in this regard and there was no justifiable reason to limit the Appellant’s rights.

Importantly, however, the LAC stressed that this finding may not be true for other employees of the Respondent whose circumstances and work environment may be different.

As such, employers need to reconsider their substance abuse policies and ensure that they are drafted in a manner that will not be seen to be infringing unjustifiably on the rights of their employees. A practical approach to this will be required and not an overall reliance on a zero-tolerance policy.

Various alcohol intoxication cases in the Labour Courts have held that a breathalyser is not conclusive to justify dismissal and should be coupled with other evidence such as the employee’s behaviour which is generally associated with alcohol intoxication.

The LAC, in this case, stated that a similar jurisprudence should develop in relation to the known symptoms of cannabis consumption and their effect compared to the duties associated with the nature of the employee’s job.

Ultimately, of importance for employers, is that when relying on a substance abuse policy, intoxication must be proven, unless it can be shown that a zero-tolerance approach is an inherent requirement of the job for the particular employee/s concerned.

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