In the Constitutional Court case of Minister of Justice & Others v Prince & Others 2018 ZACC, the court decided to decriminalise the cultivation, possession, and use of cannabis for private purposes.
However, the court failed to guide employers on how to manage cannabis in the workplace. Does this mean that employees can now be under the influence of cannabis in the workplace without repercussions? Can an employer take disciplinary action against employees who are found to be intoxicated? This has left considerable uncertainty.
Challenges of Cannabis Testing in the Workplace
Unlike alcohol, which can leave one’s system within hours, cannabis can be detected between 3 days and six months after use, depending on which type of testing is conducted, namely blood, urine or hair. This bears the question; how does an employer prove that an employee is under the influence of cannabis in the workplace when they could have used cannabis days or even months before? Whilst alcohol tests, such as a breathalyser, are quick to administer and are accurate in determining how much alcohol is in a person’s system, cannabis tests do not accurately provide the same degree of impairment.
As with alcohol, an employer will need to determine whether an employee can perform their duties if cannabis is detected in their system. A positive outcome on a test does not necessarily prove that the employee is under the influence of alcohol or cannabis to the extent that their work has been impaired.
Legal Precedents and Practical Considerations
In the matter of Tosca Labs v CCMA 2012 33 ILJ 1738 (LC), the Labour Court found that a positive test result on a breathalyser is insufficient proof to indicate that the employee was under the influence of alcohol. An employer can take disciplinary action against an employee without a test where the effects of cannabis/alcohol are observed, and it is evident that the employee is too impaired to perform their duties and/or is a risk to themselves or others in the workplace.
Employers are entitled to implement policies and procedures within the workplace to ensure occupational health and safety. It is advised that a policy specifically dealing with the use of cannabis and its effects in the workplace be implemented. Further, employers need to consider the nature of the business and the duties the employee is expected to perform.
An employee responsible for operating heavy machinery who is found impaired and unable to perform his duties poses more risk than, for instance, an office cleaner who does not operate any heavy machinery that could put their life or their fellow employees’ lives in danger if caught under the influence of cannabis. Thus, consideration needs to be given to the circumstances under which the offence was committed.
The policy needs to consider issues such as consent to cannabis testing, what type of testing will be conducted and the employee’s history, if any, on drug-related offences. Any testing conducted by the employer must comply with Section 7 of the Employment Equity Act, No. 55 of 1998. Section 7 states that the test must be permitted or required by law or justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent job requirements.
Case Study
In the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826/2020) [2022] ZALCJHB 292, two employees (Applicants) tested positive for cannabis whilst on duty. The employer (Respondent) had a zero-tolerance policy on alcohol and drug abuse, of which the employees were aware. These two employees tested positive for cannabis, pleaded guilty to the charge and were dismissed for their misconduct.
The employees referred the matter to the CCMA for an unfair dismissal dispute, stating that the Constitutional Court had legalised the use of cannabis for private purposes. Unhappy with the CCMA ruling, the employees took the CCMA award on review to the Labour Court.
Enforcing Zero-Tolerance Policies
The employer’s justification for dismissing the employees was based on the Occupational Health and Safety Act and submitted that the zero-tolerance policy was implemented to ensure workplace safety and reduce risk to themselves, their colleagues and the plant.
The Labour Court dismissed the review of the applicants and found that the Constitutional Court judgement of Prince (supra) does not afford protection to employees against disciplinary action should they act in contravention of company policies. This case demonstrates that employees can be dismissed for testing positive for cannabis in the workplace, having regard to the nature of the workplace, if a zero-tolerance policy prohibiting the use of alcohol and intoxicating substances has been adopted by the employer.
In conclusion, employees are still required to adhere to their employer’s policies and procedures. They are not entitled to attend work under the influence of cannabis, despite the Constitutional Court’s ruling of decriminalising cannabis for private use. Employers will face difficulty in proving that the use of cannabis has impaired an employee’s ability to perform their duties.
For more information or assistance in drafting your company’s workplace policies and procedures, please contact admin@invictusgroup.co.za.
