The decriminalisation of cannabis won't protect employees violating their employers' policies

Since the Constitutional Court judgment in 2018 that decriminalised the use of cannabis for personal consumption in private, many people use cannabis for recreational, medicinal or spiritual purposes in their private spaces. A common known fact is that when used, cannabis remains detectable in a person's bloodstream for days after it has been consumed, even after its intoxicating effects have worn off. This means that an employee will still test positive for using cannabis although s/he did not use it on the work premises or during work hours. One of the most asked questions after the Constitutional Court judgment is whether an employee can be dismissed for going to work after using cannabis in private and outside the workplace.

In a recent judgment handed down by the Labour Court, Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (2022) ZALCJHB 142 (1 June 2022), the dismissal of an employee who had used cannabis after hours was upheld.

Facts of the case:

>     The employee was employed in an office position at an employer who provides heavy machinery to mining and civil engineering industries.

 >    The employer has a strict zero-tolerance alcohol and substance abuse policy and all the employees are subjected to routine substance testing.

>     On different occasions, the employee tested positive for cannabis and was found to be unfit to continue working. She was ordered to vacate the employer's premises and placed on a 7-day “cleaning-up process”, which meant that the test would be repeated on a weekly basis until she was cleared by testing negative. At the time of the drug test, the employee was neither intoxicated, nor was she suspected of being impaired in the performance of her duties.

>     The employee was charged with and pleaded guilty to contravening the employer's substance abuse policy. However, she argued that she had not been intoxicated, and that she used cannabis for medicinal purposes (she did not lead any medical expert evidence in this regard). She further expressed that she had no intention to stop using cannabis.

>     Despite an unblemished 13-year disciplinary record, the employee was found guilty for contravening the employer's policy and was subsequently dismissed.

What the court said:

>     The Labour Court upheld the dismissal of the employee and held that "the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employer's policy”.

>     The Labour Court also noted that although the employee's work was not to deal with heavy machinery, the employer's workplace is fraught with danger. Which is the reason for the strict alcohol and substance abuse policy.

>     The employee was more than aware when she consumed cannabis at home that she was required to report for duty the following day and that consumption would lead to a positive test result and that it would be against the employer's policy.

>     In respect of the employee's argument that she used it for medicinal purposes, the Labour Court stated that it was her responsibility to volunteer her medical state to the employer. This would have given them an opportunity to properly consider her circumstances and possibly reach an ideal and practical solution. Instead, she only raised her medical condition as a defence when she got caught. The employee further failed to present proper medical evidence.

>     Subsequently, the Labour Court held that the dismissal was not unfair and that there was no form of discrimination as the employer's policy was applied the same with all employees.

Conclusion:

>     This case not only highlights the importance of employees adhering to employers' workplace policies, it also demonstrates that the decriminalisation of cannabis use in private does not automatically extend into the workplace.

>     The case also manages to leave the door open on fostering discussions around reasonable workplace accommodations for employees who use cannabis as prescribed for medical conditions and can provide proper medical evidence.

Did you know…You may still get dismissed from work for using cannabis for personal reasons and in private?