South Africa: Can You Be Fired For Testing Positive For Cannabis In The Workplace?

The Constitutional Court's decision in Minister of Justice and Constitutional Development and Others v Prince and Others (the "Constitutional Court decision") declared certain provisions of the Drugs and Drug Trafficking Act, 1992 and the Medicines and Related Substances Control Act, 1965 to be inconsistent with the right to privacy and therefore invalid to the extent that they made the use or possession of cannabis by an adult person for his or her own consumption in private a criminal offence.

Since then, it has been widely accepted that adults can use and possess cannabis in their private spaces. But what happens when an employee uses cannabis in their private space and later tests positive for cannabis in the workplace?

Recently, in NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (Pty) Ltd, the Labour Court had to determine whether the dismissal of two employees was fair in circumstances where they had been dismissed for testing positive for cannabis.

Brief facts

The employees were employed as manufacturing operators and were dismissed for misconduct based on the following allegation: "On 18 March 2020 you tested positive for dagga in your system whilst within (inside) the workplace (on duty)".

The employer has an alcohol and drug policy which prescribes a zero-tolerance approach to testing positive for alcohol or drugs in the workplace. The reason for this is safety considerations: a large amount of gas, large forklifts, extremely hot processes and dangerous chemicals are used on site. The employer's disciplinary code provides that being "under the influence of alcohol or drugs within the workplace" is an offence for which dismissal is the prescribed sanction for the first offence.

In challenging the fairness of their dismissal, the employees' case was that cannabis is not a drug and that it is no longer illegal to use it. As a result, they argued that the use of cannabis could not find its way into an employer's disciplinary code, as its use was legal and cannot constitute misconduct. This argument was based on their interpretation of the Constitutional Court decision. The employees further contended that the Constitutional Court decision decriminalised cannabis because cannabis "is not a drug, it is just a plant, it is a herb".

Despite their contentions, the arbitrator found the employees' dismissal substantively fair.

Analysis

Dissatisfied by the arbitration award, the employees took it on review to the Labour Court. In determining the matter, the Labour Court found that the existence of the employer's alcohol and drug policy was not disputed. The employees were aware of the policy and they conceded that they were trained on the policy.

The issue was rather whether the employer's alcohol and drug policy applied to cannabis. On this issue, the Labour Court found that it was common cause that the employees were trained on the alcohol and drug policy, and on the evidence presented, it was on a balance of probabilities established that the employees were informed during the training that cannabis was still regarded as a drug and that they should not test positive for it. On this basis, the arbitrator's finding that the employees knew, or reasonably ought to have known, that the policy applied to cannabis was not disconnected from the evidence presented and was therefore not unreasonable.

The employees also challenged the arbitrator's finding that the employer's policy on this issue was valid and reasonable in that she failed to consider that the private use of cannabis is permissible in South Africa. Effectively, the employees' case was that, since the Constitutional Court had legalised the consumption of cannabis in private, cannabis was no longer a drug, as contemplated in the employer's disciplinary code. The Labour Court rejected the employees' contention. It held that it was evident that the employees confused issues relating to the decriminalisation of the use of cannabis in private, with an employer's right to take disciplinary action against an employee who contravened a disciplinary rule.

Importantly, the Labour Court confirmed that the Constitutional Court decision does not offer any protection to employees against disciplinary action should they act in contravention of company policies and disciplinary codes. Accordingly, the Labour Court confirmed that the employees' dismissal was appropriate and fair.

Comment

It is important to note that the employees were not charged with using cannabis in the workplace, or being under the influence of cannabis whilst at work. The disciplinary charge was simply that the employees had tested positive for cannabis whilst at work. The finding of the Labour Court was that the disciplinary rule prohibiting testing positive for cannabis in the workplace could be implemented in certain circumstances, for example, where health and safety requirements justify the imposition of the rule.

Also of interest is that the Labour Court accepted that, because cannabis remains in an employee's system for a significant period of time, the mere fact that an employee tests positive does not mean that their ability to do their work is impaired. It stated that, unlike in the case of alcohol, proof of impairment is not required – impairment is assumed because of the intoxicating nature of cannabis.

Employers should also be cautious to distinguish between misconduct and incapacity when it comes to the use of cannabis. In circumstances where an employee has a dependency problem, the employer would have to consider other alternatives such as rehabilitation or counselling, before resorting to termination on the basis of incapacity.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica's Employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.