Many South African businesses are tasked with adapting or changing their operating procedures and policies each time there is new legislation introduced or changes to existing legislation. A perfect example of this would be when the Constitutional Court ruling in Minister of Justice and Constitutional Development and Others v Prince and Others1 changed the way in which an individual's recreational and private use of cannabis is regulated, requiring employers to determine the most effective way to deal with the impact that this would have on the workplace.
What Are The Legislative Implications?
Although the Constitutional Court ruling permits adult persons to use, possess or cultivate cannabis in private for their own personal consumption, there have been no legislative changes to date. There has been, however, some movement in respect of this with the submission of the Cannabis for Private Purposes Bill of 2020 to Parliament. Be that as it may, the existing legislation regarding cannabis has not been amended and is still to be enforced, with particular attention being given to the Constitutional Court ruling to assist with such enforcement until a clear legislative change has been affected.
What Does This Mean For Employers
Many employers have existing policies and procedures in place that deal with the use of drugs and alcohol in the workplace. These policies and procedures may have to be amended once new legislation is enacted; however, until then, companies are strictly applying their obligations in terms of the Employment Equity Act2 and the Occupational Health and Safety Act3 and maintain a zero-tolerance approach to the use of drugs and alcohol in the workplace. In recent Labour Court and Commission for Conciliation, Mediation and Arbitration ("CCMA") cases, this approach by employers is supported.
This is evident in the case of Enever v Barloworld4 in which the company having a well-established substance abuse policy, dismissed an employee for the continuous breach of this policy. The employee used cannabis privately on a regular basis, and although it was always consumed outside of work hours and nowhere near the workplace, testing positive for the substance contravened company policy. As a result, the company prohibited the employee from accessing the workplace until she tested negative for the substance. Despite the Court being mindful that the substance did not affect her ability to do her work, her performance was influenced by her actions and inability to do her job because she could not access the workplace because of them. The Court held that the dismissal was fair in that the employee was aware of the company policy, which was applied consistently by the company and which the employee breached, making her guilty of the misconduct with which she was charged.
In conclusion, when used correctly, the mechanism and policies available to employers can create certainty and be beneficial for their businesses; however, they can also place a severe burden on them when applied incorrectly. Therefore, it is crucial to know what the current legislation is, their effect on your business and ensure that you are not acting in a manner that can be detrimental to your business. Consult with a legal professional when creating your company policies or enforcing them.
1. Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17)  ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18 September 2018).
2. Employment Equity Act 55 of 1998.
3. Occupational Health and Safety Act 85 of 1993.
4. Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20;JS926/20)  ZALCJHB 142 (1 June 2022).
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.