Dismissal for Private use of Dagga

Since the Constitutional Court ruling in 2018 in Prince v President of the Law Society of the Cape of Good Hope decriminalizing dagga, the workplace remains fraught with challenges emanating from the use of cannabis for private consumption. Are zero tolerance policies relating to drug, and alcohol intake not potentially unfairly discriminating against those who has cannabis in their system, considering that alcohol typically clears within 24 hours after intake, but cannabis can be detected for a few weeks? Is it reasonable to take disciplinary action against an employee who may have used cannabis, days prior being tested?

Also, considering an employee may use cannabis in his private capacity, can an employer take disciplinary action against such an employee still having it in his or her system?

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In Nhlabathi vs PFG Building Glass (2022), the employer subjected two employees to a misconduct procedure in terms of Scheule 8 4) of the Labour Relations Act and dismissed them for testing positive for dagga in their system while on duty. Previously, during arbitration, it was ruled that the dismissal of the employees were substantively fair. Procedure was not in dispute. The employee’s defence was that the employer does not have a policy that states that ‘once one tested positive for dagga that will warrant dismissal’. In addition, that the Constitutional Court has decriminalized dagga because dagga ‘ is not a drug, it is just a plant, it is a herb’.

The employer’s case was that both employees pleaded guilty during the hearing and that their disciplinary code stated that being ‘under the influence of alcohol or drugs within the workplace’ is an offence for which dismissal is the prescribed sanction. The employer further stated that one may not have been under the influence and your minds altered, but having a zero tolerance policy, firstly, was for safety reasons as the workplace was dangerous and a hazardous environment.

Secondly, it was to prevent employees who are being influenced by alcohol and drugs from negatively affecting their co-workers and damaging equipment. The employer takes safety very seriously as it has a moral, civil and legal duty to endure the working environment was safe. On the site there is a high proportion of gas, large forklifts, extremely hot processes and dangerous chemicals. The product they manufacture is also dangerous as it is very heavy glass, which could potentially cut or crush a person.

The employees responded that The Constitutional Court stated that cannabis is not a drug, but a plant and that the employer is still holding on to the old stigmatisation of the cannabis, contrary to the Drug Act. Both the employer and employees agreed that cannabis can legally be consumed in one’s private space and it is not illegal to possess cannabis in one’s private space, but that it does not mean one can be under the influence in the workplace.

The employees further stated they have used dagga three days before being tested and was not aware that they committed misconduct considering they did not consume dagga in the workplace. As dagga is not a drug, there is no specific policy dealing with dagga in the workplace that prevents them from coming to work.

Judge Prinsloo for the Labour Court affirmed the Arbitrator’s view that the employer had a zero tolerance policy, that the employees were aware of the policies and were trained on the employer’s view that dagga is considered a drug. In addition, the disciplinary code allows for dismissal as sanction.

Judge Prinsloo, however, took exception to the employee’s misleading statement in that the Constitutional Court allegedly ruled that dagga is not a drug, but a plant. The judge stated that the Constitutional Court dealt with a very specific matter relating to privacy in terms of Section 14 of the Constitution of South Africa and found that being in the possession and consuming dagga in one private space is not a crime as provided for in the Drugs and Trafficking Act. The Constitutional Court further stated:

‘The government objective in prohibiting the use and possession of cannabis arises from the belief that its abuse may cause psychological and physical harm. On the evidence of the experts on both sides, it is common cause that cannabis is a harmful drug.’

The Drugs and Drug Trafficking Act defines a “drug” as

“any dependence producing substance, any dangerous dependence producing substance or any undesirable dependence-producing substance”.

The definition of ‘drug’ refers to three types of substances, being:

1. dangerous dependence-producing substance – “means any substance or any plant from which a substance can be manufactured included in Part II of Schedule 2”;

2. dependence-producing substance – “means any substance or any plant from which a substance can be manufactured included in Part I of Schedule 2”; and

3. undesirable dependence-producing substance – “means any substance or any plant from which a substance can be manufactured included in Part III of Schedule 2”.

The Constitutional Court declared that, the provisions of sections 4(b), read with Part III of Schedule 2; the provisions of section 5(b) of the Drugs and Drug Trafficking Act ,read with Part III of Schedule 2 and with the definition of the phrase "deal in" in section 1 of the Drugs and Drug Trafficking Act, are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that they make the use or possession of cannabis a criminal offence or prohibit the cultivation of cannabis by an adult, in a private place for his or her personal consumption in private.

The Constitutional Court therefor did not interfere with the definition of ‘drug’, nor did it declare dagga or cannabis to be a plant or herb as was alleged by the employees. It is also evident from the Constitutional Court judgment that it does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes.

The Labour Court dismissed the employee’s Review Application.

What we learn from this case is that the Constitutional Court did not interfere with the definition of a ‘drug’ in the prince case, nor did it offer any protection to employees. Employees may still be dismissed in circumstances where a zero tolerance policy exist and that a dismissal is a reasonable sanction.

It is advisable for employers to seek professional advise. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email:?[email protected]