On the 23 April 2024, the Labour Appeal Court (LAC) in Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd [2024] 6 BLLR 562 (LAC) (Enever II) handed down a landmark judgment, setting aside the decision of the Labour Court, which endorsed the substantive fairness of a dismissal relating to a positive drug test of cannabis (para 53). Conversely, the LAC decision found that the dismissal is automatically unfair and discriminatory on arbitrary grounds, labelling drug testing systems as ‘irrational’ (para 63). Notably, this turnaround precedent has left uncertainties on whether onsite drug screenings are subjected to a blanket ban. Enever II placed employers in a precarious position, through closing the door for South African companies from preventing hazardous workplaces.
Back in 2018, the Constitutional Court 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) decriminalised the use, possession, and cultivation of cannabis for private purposes (para 129). Put differently, the court construed constitutional privacy to openness the door for cannabis users to consume the substance within private dwellings. However, the implications of Prince have become prevalent in the context of workplace drug testing. Urinalysis has come under immense scrutiny since the Prince dictum was delivered by virtue of the prolonged detection period which has the potential to detect impairment from the previous weeks or months, as opposed to accurate impairment (L Miike and M Hewitt ‘Accuracy and reliability of urine drug tests’ (1988) 36 Kansas Law Review 641 at 642). What happens when the use of cannabis within private realm results in an employee reporting for duty and testing positive for cannabis? (Dr Greg Kew ‘Review of the Labour Court of appeal Judgement in the matter between Barloworld Equipment (Respondent) and employee Bernadette Enever (Appellant)’ (www.saiosh.co.za, accessed 8-7-2024)). This question was left unanswered for many years post Prince. In effect, the aftermath of the decision also saw a series of dismissals in labour court judgments and arbitration rulings despite the Constitutional Court’s framework (see K Newaj ‘Dismissals for Cannabis Use: Determining Substantive Fairness’ (2023) 44 ILJ 683). Ramifications pertaining to drug testing systems continued until Enever ruled that drug testing policies cannot reign supreme over the Constitutional Court judgment (Enever II at para 34).
On 29 January 2020, Ms Bernadette Enever (employee), employed as a category analyst (para 4), was subjected to undergo urine drug screening. The results reflected a positive test of cannabis (para 10). In response to the outcome, the employee admitted to having used cannabis for health and religious purposes, as this brought her closer to God (para 25). During the disciplinary hearing, the employee pleaded guilty, and a summary dismissal was imposed on 30 April 2020 (para 12). Subsequently, the employee referred
s 187(1)(f) of the Labour Relations Act 66 of 1995 (automatic unfair dismissal) and s 6(1) of the Employment Equity Act 55 of 1998 (discrimination) claims to the Labour Court for the zero-tolerance approach adopted by the employer (Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) (2022) 43 ILJ 2025 (LC) (Enever I) at para 1).
First and of importance to note, the Labour Court stated that it did not have the necessary jurisdiction because discrimination did not exist (Enever I at para 47-48). According to the Labour Court, the matter mirrored an ordinary form of misconduct, as opposed to automatically unfair dismissal. This in other words, implied that the present case fell within the purview of the Commission for Conciliation, Mediation and Arbitration (CCMA) (Enever I at para 43 and 45). Unsatisfied with the outcome, the employee further referred the matter to the LAC (Enever II at para 1).
Enever is no doubt the turning point to the jurisprudence of substance testing systems in South Africa. The court, with utmost prudence, took cognisance of the fundamental flaw of urine testing. As repeatedly stated, the court noted that blood testing system does not detect the likelihood of impairment at the time of the test due to the prolonged window period. The LAC had four issues to determine (Enever II at para 20):
The LAC did not scrutinise the first issue because the employer accepted that there was a causal link between the positive test of the employee and the dismissal (Enever II at para 21). Secondly, the court determined whether discrimination existed on listed grounds according to s 6(1) of the Employment Equity Act. Importantly, the LAC interpreted ‘spirituality’ as a synonym to the listed ground of ‘religion’, and concurred with the decision of the court a quo in that the dismissal was not linked to the employee’s spiritual beliefs, by virtue of her admission that she smoked for recreational purposes (Enever II at para 25).
When determining whether the substance policy differentiated between alcohol and cannabis users, the employee had to show impairment of human dignity in a comparable manner to discrimination based on the listed grounds (Enever II at para 30 and 32). The policy largely treated alcohol and cannabis users on an equal footing for testing positive. Importantly, the policy ignored the fundamental flaw relating to the prolonged window detection of drug testing systems, which are substantially different to alcohol testing through breathalyser (Enever II at para 59). While the former detects past drug impairment, the latter shows recent consumption of alcohol. Put another way, a urine drug test does not show whether the employee’s capacity has been inhibited from performing her functions. In this regard, the LAC established differentiation between alcohol and cannabis users (Enever II at para 52).
Although employers have an underlying duty to ensure workplace safety, such obligation, the LAC stressed, is not a justifiable reason for infringing the employee’s constitutional privacy (Enever II at para 35). In effect, the court embraced privacy autonomy and human dignity of cannabis users. The policy of the company forced the employee to choose between her work and her right to consume cannabis (Enever II at para 38 and 60).
Although the decision of the LAC in Enever constitutes a significant step towards testing systems, this dictum has left further gaps in workplace substance testing jurisprudence, leaving employers in a precarious position. The decision contributes to the ambiguity on whether drug screenings are now subjected to a blanket ban despite the employer’s interests to ensure a safe workplace environment, according to s 8(1) of the Occupational Health and Safety Act 85 of 1993 (Enever II at para 34). Be that as it may, regard must be had to the interests of employers. The court in NEHAWU v University of Cape Town and Others 2003 (2) BCLR 154 (CC) interpreted the wide conception of ‘everyone’ in s 23(1) of the Constitution, to include both employers and employees, for purposes of fair labour practices (see A Van Niekerk and N Smit Law@work (Durban: LexisNexis 2016) at 39-40).
The decision of the LAC in Enever has shut the door for employers to excise fair labour practices, thereby undermining a fair balance between employers and employee. The Labour Court in Enever I stated, expressly, that South African workplace drug testing systems must be developed to align with the modern legal framework and the leading precedent set by Prince to respect privacy and autonomy of employees, and interests of South African employers (Enever I at para 24-25).
While Enever protects the privacy autonomy of employees who consume cannabis, it is incumbent for our judiciary to take into consideration the interests of employers to maintain workplace safety. A complete ban of drug testing systems contravenes the constitutional right to fair labour practices afforded to ‘everyone’ which includes ‘employers’ (see Van Niekerk and Smit). Our legal system remains uncertain on the available mechanisms to curb the impairment of cannabis in the workplace.
Thato Lentsoe LLB PG Dip LLM (UJ) is a law lecturer at the Independent Institute of Education’s Varsity College.
This article was first published in De Rebus in 2024 (Aug) DR 56.
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