Tasso Anastides and Kathleen Butler, Eversheds Sutherland
Law firm Eversheds Sutherland says employees’ rights outside of work don’t offer protection against companies with a ‘zero-tolerance’ approach to cannabis. This may, however, change as cases are taken on appeal.
We all remember the unbe-weed-able 2018 Constitutional Court case of Minister of Justice and Constitutional Development and Others v Prince and Others which dramatically altered the legal position regulating the private and recreational use of cannabis.
The court ultimately held that prohibiting the cultivation or use of cannabis in an individual’s private capacity was inconsistent with the Constitutional right to privacy and was, accordingly, declared to be constitutionally invalid.
Although cannabis users were mellowed by this decision, the same could not be said for employers. When one analyses the way in which the practical implications of this declaration would be rolled out and potentially affect the employment landscape, it became clear that there was a cloud of confusion over shadowing to what extent (if any) employers could regulate the use of cannabis by their employees. Bluntly speaking, employers are well aware of the extent to which their employees can inhale the “highs” of the Prince decision, however, this leaves us with the question: what is the legal position regulating an individual’s use of cannabis from an employment perspective?
To date hereof, no legislative provisions have been enacted regulating the private use of cannabis. However, progression on the issue is soon to be set ablaze as the country awaits the enactment of the first cannabis bill titled Cannabis for Private Purposes Bill, which is awaiting finalisation.
What do CCMA commissioners and Labour Court judges think?
Recent CCMA and Labour Court decisions provide that despite the alterations in the legal landscape on cannabis, the implementation of zero-tolerance policies by employers for the use of the drug remains relatively unaffected.
The court’s approach: cannabis use outside of the workplace
In the recent case of Enever v Barloworld, a company had a long-standing zero tolerance substance abuse policy. There was a particular employee who regularly used cannabis, however, she always consumed cannabis outside of her working hours and away from the workplace. When the employee was tested in terms of the policy, the results showed that she had cannabis in her system. She was told to leave the premises and would not be granted access to her working premises until such time as she tested negative. However, seeing as though she was a regular user – the tests continued to return positive results. This lead to the company dismissing the employee for the continuous breach of its substance abuse policy.
Subsequent thereto, the Labour Court was tasked with determining whether or not the dismissal amounted to (i) an automatically unfair dismissal or (ii) whether or not the zero- tolerance substance abuse policy discriminated against her on arbitrary grounds.
The court took cognizance of the fact that (i) the use of cannabis did not impair the employee’s ability to perform her work-related duties and (ii) that the employee had never been in possession of cannabis on the company premises.
Despite the above, and in reaching its decision, the court made the following pertinent points:
The employee’s performance was affected by her actions in that she was unfit to render her services, owing to the fact that she was instructed to leave the premises and could not return until a negative drug test was produced;
The General Safety Regulation 2A of the Occupational Health and Safety Act precluded employees under the influence of an intoxicating substance from entering the workplace; and
That the Prince case did not afford any protection to employees against disciplinary action should they act in contravention of company policies.
Both of the employee’s claims accordingly failed. Instead, the court held that it was an issue related to misconduct (of which the applicant was guilty) in that:
The employee had been aware of the rule at all material times;
The company applied the rule consistently, and
The employee breached the rule.
What guidance may we take forward from this case?
Employees should be aware of and ensure that they do not engage in any form of conduct which strictly breaches a workplace policy, since a breach thereof may lead to a dismissal. This remains the case even where employees exercise lawful rights and entitlements outside of the workplace and remain perfectly capable of performing their jobs. It is also clear that nothing stops employers from implementing zero tolerance substance abuse policies despite the outcome of the Prince case.
Whether or not this decision will be successfully appealed remains to be seen, so we should remain on high alert that this position may change in the near future.
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