THE DECRIMINALISATION OF CANNABIS DOES NOT PROTECT EMPLOYEES WHO ARE IN BREACH OF A COMPANY’S ZERO-TOLERANCE POLICY

This article is based on the recent Labour Court judgment in Enever v Barloworld Equipment, delivered on 01 June 2022. 

In this matter, Barloworld Equipment dismissed a long-standing office-based employee for the continuous use of cannabis. The employee referred her dismissal to the Labour Court because it amounted to unfair discrimination and automatically unfair dismissal. 

The company has a zero-tolerance policy in respect of alcohol and substance abuse due to the company’s dangerous environment. It was part of the company’s policy to test employees for alcohol and substance abuse regularly. It is common cause that the employee was aware of this policy at all material times. 

Case Study 

The employee first tested positive for cannabis in January 2020 and was placed on a ‘7-day cleaning up process’ before being tested again. The employee repetitively tested positive for the use of cannabis for a period of one month and was charged with breaching the company’s alcohol and substance abuse policy and was subsequently dismissed. 

The employee based her defence on using cannabis for medical reasons and that she smoked it recreationally to improve her anxiety and insomnia, supposedly improving her bodily health and spirituality. The employee used numerous prescribed medications, and after the personal usage of cannabis was decriminalised, she started using cannabis oil and smoking it after hours to help with her medical condition.

The Verdict

The court held that no persuasive evidence was led by the employee in respect of her defence that she used cannabis for her medical condition and that the employee never volunteered this information to the company prior to being tested. There is no professional and validated medical proof on her argument that the cannabis was used to ease her pain and anxiety. 

Case law dictates that expert evidence must adequately prove if one wants to rely on a medical condition as a defence. 

The court further held in respect of the employee’s unfair discrimination allegation that in terms of section 11 of the Employment Equity Act, the employee cannot make a blunt allegation of unfair discrimination without taking the court into its confidence about her situation and presenting corroborating evidence to prove her case. 

The court held that: “Indeed, everyone is entitled to use cannabis in their own space and for recreational purposes. Similarly, everyone is entitled to consume alcohol in their private space and time. However, this does not mean that if an employee who consumed alcohol the previous night happens to test positive, the company would have to accept that such alcohol was consumed in the employee’s private space and time.” 

It further held that “It also does not matter that Enever (the employee) was not impaired when she tested positive. She has to comply with the rules.” The court went on further to state 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 Applicant tested positive for cannabis and continues to test positive due to her repeated and daily consumption of cannabis. She will undeniably continue to test positive. The Applicant’s performance had not been affected by her actions, but the Respondent’s issue was not one of performance.” 

Ramifications

In respect of the employee’s defence of using it for recreational purposes, the court stated the following: “If on the one hand, she had reasons to use the CBD oil to reduce her anxiety and ease the pain, what could be the reason to “recreationally” smoke the rolled-up cannabis when either or both will in any event lead to positive test(s)? 

Even if I were to accept the medicinal argument, which I don’t, then why should I accept the recreational consumption, which seems to denote that she simply consumes the drug for fun? The Applicant’s argument in this regard must fail, especially on the recreational part, which diminishes her grounds as it is unsustainable.”

The employee was in breach of the company’s policy. The Labour Court found that if the employee needed to use cannabis for medical purposes, she should have presented evidence in this regard, not use it as an afterthought defence. It is important to note that the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC) does not protect employees against disciplinary action should they act in contravention of company policies. 

The employee was treated the same as other employees at the company. Had she been treated differently, despite contravening the company’s policy, it would be seen to be creating a precedent that would place an unfair burden on the employee and would certainly not be in the interest of justice.  

The Labour Court dismissed the employee’s claim of being unfairly discriminated against and her dismissal amounting to automatically unfair dismissal and agreed with the chairperson’s view that a final written warning would serve no purpose as the employee ‘unequivocally’ refused to stop using cannabis.

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