Understanding the Implications of Cannabis Use for Employers
The issue of cannabis use in the workplace in South Africa has been addressed in several recent legal cases. One notable case is Enever v Barloworld Equipment South Africa, where the Labour Appeal Court (LAC) had to determine whether the dismissal of an employee for testing positive for cannabis was fair.
Enever was employed as a category analyst at Barloworld Equipment, and was subjected to a routine drug test which came back positive for cannabis. Despite using cannabis recreationally outside of work hours, she was dismissed under the company’s zero-tolerance drug policy. Enever challenged her dismissal, claiming it was unfair discrimination and automatically unfair under the Labour Relations Act.
Bernadette Enever, employed as a category analyst at Barloworld Equipment, was subjected to a routine drug test which came back positive for cannabis. Despite using cannabis recreationally outside of work hours, she was dismissed under the company’s zero-tolerance drug policy. Enever challenged her dismissal, claiming it was unfair discrimination and automatically unfair under the Labour Relations Act.
The Labour Court initially ruled against Enever, stating that her dismissal was due to a breach of the company’s drug policy, which sought to ensure workplace safety. The court emphasised that the policy applied equally to all employees, regardless of whether the substance use occurred during or outside of work hours.
On appeal, the LAC overturned the Labour Court’s decision, highlighting several key points:
Unfair Discrimination
The court found that the zero-tolerance policy could constitute unfair discrimination, particularly if it failed to differentiate between on-duty impairment and off-duty use of cannabis.
Privacy Rights
The judgment underscored that an employee’s off-duty cannabis use, when not affecting their job performance, should be considered within the context of their constitutional right to privacy.
Policy Implementation
The court noted the need for a rational approach in implementing zero-tolerance policies, especially considering that cannabis can remain in a person’s system long after its effects have worn off.
Safety and Role Considerations**
For dangerous roles, it may be justifiable to demand employees refrain from cannabis use. However, the court highlighted that an office worker testing positive for cannabis, without posing any safety risk, should not be treated the same as an intoxicated employee performing hazardous tasks.
Implications for Employers
This ruling suggests that while employers can maintain policies against on-duty impairment, they must carefully balance these with employees’ rights to privacy and non-discrimination. Employers should ensure their substance abuse policies are clear, consistently applied, and consider the specific risks associated with different job roles.