CANNABIS IN THE WORKPLACE BACK IN THE SPOTLIGHT

By Luthando Nondaba

The recent Barloworld judgment handed down by the Labour Appeal Court (LAC), in which an employer was ordered to pay a former employee more than R1 million in compensation, has once again put a spotlight on cannabis usage and the workplace.

The case concerned was an appeal by an employee after the Labour Court in 2022 had found that she had been fairly dismissed, after she had tested positive for cannabis during a routine medical check.

The LAC has now overturned this decision and ruled that it was unfair and discriminatory to dismiss the employee. This judgment brings back to the fore the best practices and policy considerations that employers must consider when dealing with cannabis use among its employees in, and outside of, the workplace, particularly, since its private use was decriminalised in 2018 by the Constitutional Court judgment in the Prince-matter.

There is nothing intrinsically groundbreaking about this judgment. The key takeaway in this judgment, and what is important to note, is that it was decided on a case-specific basis.

Employers may still discipline employees and enforce a zero-tolerance approach policy to drugs and alcohol in the workplace, particularly employers whose employees are not merely office-based, but who work with or within an environment that has dangerous, heavy or similar equipment and where not consuming cannabis could be a justified requirement of the job.

However, employers should steer clear of irrationally applying a zero-tolerance policy against the private use of cannabis by its employees, particularly if its staff are office workers. A positive test result alone is not sufficient to justify an employee’s dismissal, but the nature of the job and its requirements must guide the employer on how to enforce its drug policy, specifically when cannabis (and any other intoxicating substances) are involved and whether impairment can be proven.

The following principles in relation to cannabis and the workplace can be deduced:

• cannabis can only be legally consumed privately in one’s own home. It is accepted that the workplace is a public space as confirmed in this recent LAC judgment;

• the Occupational Health and Safety Act determines that every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees;

• neither this recent case nor the 2018 Constitutional Court judgement in the Prince-matter offer protection to employees against disciplinary action if they contravene company policies prohibiting the use and consequent traces of cannabis in the bloodstream;

• employers, particularly those who employ office-based employees, should be careful when applying a zero-tolerance approach in relation to its drug policies relating to cannabis, as the employee may still test positive / show traces of cannabis use during a medical screening, without necessarily being “under the influence of” or “impaired by” the cannabis consumed in private;

• intoxication must be proven, unless it can be shown that not smoking/using cannabis is an inherent requirement of the job for a particular employee(s);

• an employee relying on a medical condition that requires the use of cannabis as a treatment, must prove this fact by expert evidence; and

• it is of great importance that all employees are aware of their employer’s policy regarding drug- and alcohol/cannabis use, as well as the consequences for the contravention thereof, and where possible to distinguish between the application of the two.

The safest manner in which to avoid risk and confusion in the workplace, is to draft, in no uncertain terms, a drug-and alcohol policy which states the position of the employer and its tolerance towards the possession, use, influence, tracing and testing for substances, as well as the consequences for contravention thereof, taking into account the nature of the work environment and the requirements of the job.

Should you require more information or assistance in this regard, please contact the relevant NEASA Regional Office.

Luthando Nondaba is a Policy Advisor at the National Employers' Association of South Africa (NEASA). 

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