Flying High in the Workplace

In September 2018, the Constitutional Court decriminalised the cultivation, possession and use of dagga for private purposes.

The Constitutional Court judgment did not provide guidance on how employers should deal with or manage cannabis use in the workplace.

Cannabis and the workplace:

In the recent case of Cape Octorex (Pty) Ltd v U Shabangu – the employee, who was a supervisor, was dismissed for consuming cannabis at work. Initially, the employee denied consuming cannabis. A positive blood test, however, confirmed that he had. Subsequent to a disciplinary hearing, the employee was dismissed. The employee referred the dismissal to the CCMA.

The CCMA found that the dismissal of the employee was substantially unfair on the following grounds:

a) The employee had pleaded guilty to smoking cannabis (albeit after testing positive);

b) The employee had more than four years’ service with the employer and this was his first offence;

c) The employer had not suffered any prejudice nor had the employee’s conduct prejudiced anybody’s safety in the workplace;

d) The trust relationship was capable of being restored;

e) There was no reason to believe the employee would repeat the conduct.

The employee was re-instated.

The employer applied to the Labour Court to review the CCMA award. The employer contended that the Commissioner ignored the zero-tolerance approach adopted by the employer on the use of drugs in the workplace. The Labour court, however, dismissed the review application and held that the contention that the Commissioner ignored the zero-tolerance approach had no substance; and further that there was no evidence that the employee had compromised the safety and integrity of the other employees.

On appeal to the Labour Appeal Court (‘LAC’) – the LAC found that the employee’s dismissal was substantially fair given that the employee had initially denied smoking cannabis at the workplace and only admitted to having done so after he tested positive (which denial amounted to dishonesty). The LAC also took into consideration the employer’s zero tolerance policy in relation to the use of drugs in the workplace. Further grounds that the LAC considered were, among others:

a) The employer had suffered prejudice as its zero-tolerance policy had been breached;

b) The employer has consistently imposed dismissal as a sanction for similar offences;

c) The employee had recently been promoted to a supervisory position and accordingly, trust had been placed in him to ensure the employer’s rules were obeyed;

d) The employee admitted he was addicted to using cannabis – i.e., the employee would in all probability commit the misconduct again.

It is recommended that employers implement rules that regulate the possession and use of cannabis in the workplace. The provisions of the Occupational Health and Safety Act directs employers not to allow any person, who is, or who appears to be, under the influence of an intoxicating substance, access to the workplace.

The fact that the environment in which an employee works is not dangerous makes no difference to the legitimacy of such policy in the workplace.

While the above judgment brings more clarity on the legal position of employee’s use of cannabis in the workplace, many questions remain undetermined. Employers are recommended to review their substance abuse policies to align with the evolving regulatory environment relating to cannabis use.

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