In the matter between Bernadette Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd, the Labour Appeal Court ("LAC") dealt with an appeal from the Labour Court ("LC") where the LC had found that Bernadette Enever's (" Employee") dismissal for testing positive for cannabis was fair.
Background
Barloworld Equipment South Africa ("Company"), enforces a zero-tolerance approach to the possession and consumption of drugs and alcohol in the workplace, as outlined in its Alcohol and Substance Abuse Policy ("the Policy"). The policy prohibits employees from entering the workplace while under the influence of alcohol or drugs. Recently, an employee was subjected to a medical test upon arriving at the workplace, which yielded a positive result for cannabis. The Employee was then required to attend a disciplinary hearing and was ultimately dismissed for testing positive for cannabis and failing to test negative as required by the Policy upon returning to work on several occasions.
The Employee argued that after the Constitutional Court's decision in Minister of Justice and Constitutional Development and others v Prince ( Clarke and others Intervening) ("Prince judgment"), which accepted that it is not a criminal offence to use cannabis in the privacy of one's home, she began using cannabis that helped reduce her reliance on prescription medication and assisted with her anxiety and sleep disorder. She also stated that she smoked cannabis every night and on weekends.
At the LC, the Court determined, amongst other issues, whether the zero-tolerance approach in the Policy to testing positive for cannabis at work was unfair and discriminatory. The LC found that the Policy was applied consistently between employees who tested positive for cannabis and those who tested positive for alcohol. The LC also held that even though the Employee was aware of the Policy, she continued to breach it. As a result, the LC found that the reason for the dismissal was fair because it was based on the Employee's wilful volition of the Policy and that the Prince judgment did not make any difference to her case. The LC was therefore satisfied that the Company had fairly dismissed the Employee on the basis of her conduct and not because it was discriminating against her.
Labour Appeal Court
At the LAC, the Court had to determine, amongst other issues, whether the Policy is discriminatory and, as such, whether the Company subjected the Employee to unfair discrimination which would render her dismissal automatically unfair. The LAC held that the zero-tolerance approach in the Policy to testing positive for cannabis at work resulted in the Employee being unfairly discriminated against as it infringed her dignity by violating her right to privacy for the following reasons:
- When the Employee tested positive for cannabis, she was not impaired in the performance of any of her duties. The Employee also worked in an office and her job did not entail operating dangerous machinery or performing any duty where impairment from cannabis would present a risk to her or others in the workplace such as driving.
- While the Prince judgment did not involve labour matters, the significance of the decision is that it addressed the right to privacy, which all employees have i.e. the right to consume cannabis in one's private residence.
- The Employee used cannabis in the evenings and on weekends in the privacy of her home. This was not only for recreational purposes but also assisted her anxiety.
- Cannabis stays in the blood system for longer than is the case with alcohol. Accordingly, a mere positive test for cannabis does not address the sobriety of the user or indicate whether they are impaired in carrying out their duties. In addition, it also meant that one employee may consume alcohol in their home and have a negative test result the following day but an employee who consumed cannabis the previous night would test positive.
- The use of blood tests alone without proof of impairment at work is a violation of the Employee's right to privacy and dignity. Simply put, the Policy prevents the Employee from engaging in conduct that has no effect on the business and operations of the Company. In effect, the Company was forcing the Employee to choose between her job and the exercise of her right to consume cannabis.
- The Company did not show that the Employee was "stoned" or intoxicated during working hours on the premises which rendered her unable to properly perform her duties.
- The zero-tolerance approach in the Policy to testing positive for cannabis at work, in the context of the Employee, was found to be "overboard" and an unjustifiable invasion of the Employee's right to privacy.
- In light of the above, the LAC concluded that the Employee was unfairly discriminated against in terms of section 6(1) of the Employment Equity Act and her dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act.
Key Takeaways for Employers
- A zero-tolerance policy against the use of cannabis may infringe on an employee's right to privacy and dignity.
- There must be a link between the zero-tolerance policy and the maintenance of safety in the workplace.
- A mere positive test for cannabis is not sufficient to lead to a conclusion that an employee is impaired in the performance of their duties.
- Accordingly, if an employer could show that a positive result for cannabis means that an employee is not able to safely perform their specific duties this may result in a Court reaching a different conclusion.
- In fact this was acknowledged by the LAC when the court indicated that:
"[43] This matter could well have been different for an employee who was found to be "stoned," intoxicated or impaired during work hours on the premises or if the employee was an employee who operates or works with heavy and dangerous machinery"
"[49]... the conclusion I have reached is merely a fact specific one based on this case and the nature of the Appellant's job. It does not extend to every one of the Respondent's employees, some of whom perform drastically more dangerous jobs, and for whom not being able to smoke cannabis at all – should they wish to continue their employment with the Appellant – may be more justified."
- Accordingly, the application of a zero-tolerance approach to testing positive for cannabis contained in a workplace policy will have to be carefully considered going forward and much will depend on the facts of a particular matter.
To read the full judgment, please click here.
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