South Africa: The Private Use Of Cannabis, Workplace Testing Policies And Discrimination

In the wake of the landmark decision in Minister of Justice and Constitutional Development and others v Prince and others ("Prince III") which resulted in South Africa's legalisation of the private use of cannabis, the interaction between the right to use cannabis for cultural purposes and workplace testing policies is still a burning issue. This was one of the issues the Labour Court had to delve into in the recent decision in Marasi v Petroleum Oil and Gas Corporation of South Africa.

In this case, the employer had implemented a policy aimed at dealing with the use of alcohol and other substances by employees and its impact on its operations. The policy provided for annual and ad hoc medical assessments of employees to ensure their fitness for duty. This included testing for the use of substances such as cannabis.

The employee in this matter decided to undergo a traditional healer training programme that would last for 18 months. To do so, he requested a transfer from Cape Town to the employer's operations near Mossel Bay. This was granted subject to the employee undergoing a medical assessment when he reported for duty there. This assessment was performed and it showed that the levels of cannabis in his system exceeded that provided for in the policy. As a result, the employer prohibited the employee from accessing the workplace until further testing could be conducted. Subsequent tests confirmed the presence of cannabis in the employee's system, with levels exceeding the permissible limit. The employer declared the employee unfit for duty and continued to bar him from entering the workplace until he tested either negative or below the permissible limit. In his interactions with management on the issue, he argued that his use of cannabis was required as part of his training programme. He lodged a grievance against his treatment. The matter was eventually resolved and the employee returned to work when medical assessment showed that he complied with the employer's policy.

However, this was not the end of the matter. The employee argued that the way in which he had been treated constituted unfair discrimination on the grounds of culture and thus contravened section 6 of the Employment Equity Act ("EEA"). He further argued that the policy was outdated in that it conflicted with the Constitutional Court's decision in Prince III.

The employer rejected these arguments and the dispute eventually came before the Labour Court. The court held that the policy did not, on the face of it, differentiate between employees. It applied to all employees within the organisation and there was no direct discrimination on a prohibited ground. However, the court was prepared to accept that there had been indirect discrimination. The concept of indirect discrimination is recognised in section 6 of the EEA. It occurs where, for example, an employer adopts a policy that is, on the face of it, neutral and non-discriminatory but that, in reality, has a disproportionate impact on a certain class of employees and that this disproportionate impact is based on one of the prohibited grounds for discrimination. The court accepted that the policy may indirectly discriminate against persons who use cannabis for religious or cultural purposes, both being prohibited grounds for discrimination in terms of section 6 of the EEA.

However, it pointed out that the further question was whether the indirect discrimination was unfair. The court referred to section 6(2) of the EEA which provides that it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of the job and came to the conclusion that the requirement of testing negative for the use of cannabis was reasonable and constituted an inherent requirement of the job. There had therefore been no unfair discrimination. The court acknowledged that the employee experienced a negative impact on his dignity, but emphasised that the existence of discrimination does not depend on the subjective feelings of affected individuals.

The employee also argued that the decision in Prince III, and the legalisation of the use of cannabis in private required the employer to review and adjust the policy. The court rejected this argument. The mere fact that the use of cannabis in private was no longer unlawful does not mean that an employer is not entitled to regulate its use where this may impact the employment environment. For example, the use of alcohol is not prohibited, but employers are entitled to regulate its use in a work-related policy.

Comment

This decision is of interest in that it is one of the rare occasions where indirect discrimination has been alleged and it illustrates the potential scope of the concept.

Perhaps of more importance is the Labour Court's rejection of the notion that, because the private use of cannabis is no longer illegal, this prevents an employer from implementing rules regarding the use of cannabis in so far as it impacts the workplace.

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

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