CANNABIS IN THE WORKPLACE

In the case of ENEVER V BARLOWORLD EQUIPMENT SOUTH AFRICA, A DIVISION OF BARLOWORLD SOUTH AFRICA (PTY) LTD (JA86/22) [2024] ZALAC 12 (23 APRIL 2024) the LAC overturned the employer’s decision to dismiss the employee based solely on a positive cannabis test, despite lacking evidence of impairment.

The employer had a clear policy of zero tolerance and a right to test. On 29 January 2020 and on four further occasions the employee tested positive. She used cannabis for severe anxiety and did not stop using cannabis. She also used it for recreational purposes.

She was dismissed after making it clear she would not stop using cannabis as she claimed it was her right to use it and that she was not impaired at work, which was in an office environment.

The employee based her claim on conscience, belief and opinion, alternatively, on an arbitrary ground in that her right to use cannabis in private is being prejudiced.

The LAC stated that the principle of “overbroad, unwarranted and unjustifiable invasions of the right to privacy being unconstitutional”, applied in this case.

The use of a blood test alone without proof of impairment on the work premises, was a violation of the employee’s dignity and privacy. The employer did not show that the employee was intoxicated at work, nor created unsafe conditions.

The LAC referred to Shoprite Checkers (Pty) Ltd (2015 ZALAC 23) case which found that “the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a Commissioner to fall in line with such an approach”.

A mere positive test for cannabis that can remain in a person’s system for many days, does not address the sobriety of the user or indicate whether they are impaired from carrying out their duties. The employee had an office desk and did not work with heavy or dangerous machinery.

The LAC stated that there was no rational link between a zero-tolerance policy and against the personal cannabis use by employees in their own homes and the maintenance of safety at the workplace.

The LAC conceded that the findings, in this case, were based on the merits of the case (i.e. the nature of the job and work environment, the substances policy, the lack of evidence of impairment and the like) and that under different circumstances it may have adopted a different view.

The Company was found guilty of unfair discrimination and the dismissal of the employee was considered an Automatically Unfair Dismissal under the Employment Equity Act and the LRA respectively.

It was ordered to compensate the employee by paying her 24 months compensation.

The ruling underscores the necessity for businesses to develop fair, clearly defined policies that respect employees' privacy while ensuring workplace safety and productivity. Companies must balance these policies within a legal framework that protects against discrimination and unwarranted invasion of privacy.