Employment law update – Disciplinary action for testing positive for cannabis in the workplace

April 1st, 2023
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In SGB Cape Octorex (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others [2023] 2 BLLR 125 (LAC), an employee was dismissed for smoking dagga while at work. The employee was a supervisor, and his manager received a tip off that this employee had been smoking dagga on the premises. The employee was called to the manager’s office and confronted with the allegation, but he denied smoking drugs. A blood test was then conducted and demonstrated that dagga was in fact present in the employee’s bloodstream. The employee was also subjected to a second saliva test, which confirmed that he had tested positive for dagga. The employee was suspended and subsequently charged with testing positive for dagga. After a disciplinary hearing the employee was dismissed. The employee then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found that the dismissal was substantively unfair and ordered reinstatement based on the following findings –

  • the employee had pleaded guilty to smoking dagga after the test results;
  • the employee had more than four years’ service with the employer and had a clean disciplinary record;
  • this was the employee’s first offence;
  • there was no evidence that the employer had suffered any prejudice or that the employee’s conduct had prejudiced anybody’s safety in the workplace;
  • the employee had been promoted to a supervisor position;
  • there was no reason to believe that the employee would repeat the misconduct despite the fact that the employee said that he was addicted to dagga; and
  • the relationship with the employer was capable of being restored.

The employer instituted review proceedings in the Labour Court (LC) but the LC dismissed the review application. On appeal to the Labour Appeal Court (LAC), the employer argued that dismissal was the appropriate sanction because the employee had been dishonest and there was a zero-tolerance policy in relation to the use of drugs in the workplace. The LAC considered the fact that the employee had initially denied smoking dagga until such time that he tested positive for dagga, which amounted to dishonesty. It did not agree with the CCMA that regard should be had for the fact that the employee pleaded guilty and remarked that this should be a neutral factor when the evidence against the employee makes the matter an open and shut case. Regarding the fact that the employee had a clean record and this was a first offence, it was held that the policy made it clear that a first offence could attract a sanction of dismissal. Furthermore, the employer had been consistent in imposing dismissal as a sanction for similar offences. In regard to the prejudice suffered by the employer, the LAC found that the employer had suffered prejudice because its rule had been breached. It was held that employers are entitled to adopt their own rules and establish a standard of conduct for employees. The rule in these circumstances was justifiable given the fact that the employees work on heights and the employee was working on the eighth or ninth level on the day in question. As regards the fact that the employee had been promoted to a supervisor position, this was actually found to be an aggravating factor as trust had been placed in him to ensure that rules are obeyed, and he should have been leading by example. Furthermore, the evidence suggested that the employee would commit the misconduct again in the future as on his own admission he was addicted to drugs. It was accordingly found that the employee was aware of the rule, such rule was reasonable and had been consistently applied and, therefore, dismissal was justifiable in the circumstances. The LAC was, therefore, of the view that the CCMA’s assessment of this was matter was unreasonable. The appeal was accordingly upheld.

 

 

In National Union of Metalworkers of South Africa obo Nhlabathi and Another v PFG Building Glass (Pty) Ltd and Others [2023] 2 BLLR 142 (LC) two employees who were employed as operators were dismissed for misconduct based on testing positive for cannabis in the workplace. The employees were charged with testing positive for cannabis and pleaded guilty to the charge at a disciplinary hearing but argued that there was no rule against testing positive for cannabis in the workplace. The employees were dismissed and challenged the substantive fairness of their dismissal arguing that dagga is not a drug but is a herb and furthermore that the Constitutional Court (CC) in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as Intervening Parties, Doctors for Life International Inc as Amicus Curiae) and related matters 2018 (10) BCLR 1220 (CC) had decriminalised the private use of dagga with the effect that the use of dagga is permissible and any employer policy to the contrary is unconstitutional. The procedural fairness of the dismissal was not challenged as a disciplinary enquiry had been convened. The employer argued that it had a zero-tolerance rule against mind-altering substances and that the disciplinary code provided for dismissal for a first offence of being under the influence of alcohol or drugs within the workplace. The reason for this rule was that the workplace is dangerous as there is a high proportion of gas, large forklifts, extremely hot processes, and dangerous chemicals. Furthermore, the employer has a duty to provide a safe working environment and it wanted to protect employees and equipment from the negative consequences that may flow from someone who is working under the influence of alcohol or drugs. There is also a risk that employees under the influence of alcohol or drugs will not be able to perform their duties to the required standards. The arbitrator upheld the dismissals.

On review, the Labour Court (LC) had to consider whether the CC rendered the employer’s policy unconstitutional. The LC held that although the CC found that certain provisions relating to private use of cannabis infringed the right to privacy it still found that dagga was a harmful drug and it did not afford any protection to employees who infringe the employer’s policies in relation to the use of such drugs. Therefore, the CC decision does not prevent employers from taking disciplinary action against offenders of their disciplinary codes. The LC further held that the normal mitigating factors do not apply to breaches of zero-tolerance policies that relate to health and safety. Therefore, the length of service of the employees, a clean disciplinary record and whether or not the employees actually presented a danger on the day they tested positive was irrelevant because there was a zero tolerance policy. In this regard, it was found that the only test that would need to be applied to determine whether disciplinary action can be taken in respect of breach of a zero-tolerance policy is whether:

  • the employees were aware of the rule;
  • whether the rule was consistently applied; and
  • whether the rule was justifiable in the circumstances.

The employees were aware of the rule as they had received training on the policy. The dismissal was found to be fair in the circumstances and the review application was dismissed.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2023 (April) DR 34.

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