Employment law update – Testing positive for marijuana in the workplace

December 1st, 2023

In Marasi v Petroleum Oil and Gas Corporation of South Africa (SOC) Ltd [2023] 10 BLLR 1043 (LC), the employee was denied entry to the workplace after he was tested for marijuana and his test was in excess of the tolerance level in the employer’s substance abuse policy. The employee alleged that the marijuana was taken because he had attended a traditional healing course that involved using marijuana. He alleged that his denial of access to the workplace amounted to suspension and that this constituted unfair discrimination on the basis of culture. He also alleged that the substance abuse policy was outdated because it was implemented prior to the Constitutional Court decision in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) in terms of which the use, possession, and cultivation of cannabis by adults for private use was decriminalised. The employee went on paid annual leave and sick leave during the period that he was not permitted to attend the workplace and was eventually able to return to work after about three months. This was once he tested within the parameters of the substance abuse policy.

After returning to work he referred a dispute alleging that he had been suspended during this period and was unfairly discriminated against. The Commission for Conciliation, Mediation and Arbitration lacked jurisdiction as the employee earned above the prescribed annual earnings threshold and the matter was then referred to the Labour Court (LC). The employee claimed three months’ remuneration as compensation, as well as damages of R 250 000 for impairment of dignity, distress, and past medical expenses. In addition, he sought an order that the employer’s alcohol and substance abuse policy be reviewed.

The employer alleged that the employee was not on suspension and raised the defence that it is an inherent requirement of the job that the employee not be intoxicated by marijuana as the workplace is a chemical factory. According to the employer the employee had still been permitted to attend the traditional healer’s course despite the fact that it involved cannabis. The employer, however, alleged that the right of the employee to practice his culture and use marijuana in private could not trump the employer’s health and safety policies, particularly because it had an obligation as an employer to maintain a safe working environment. Given the fact that the employer’s business involved the exploration and production of oil and gas there was a need for strict requirements that had to be adhered to in order to ensure the health and safety of all employees.

The LC had to consider whether testing below the limits set out in the employer’s substance abuse policy was in fact an inherent requirement of the job for employees in a chemical plant and found that it was an inherent requirement of the job and, therefore, this was a complete defence to a discrimination claim. It was remarked that although the employee felt that his dignity had been impaired whether or not there was discrimination does not depend on the subjective feelings of the complainant. It was also held that the fact that the use of substance is legal does not detract from a test based on its effect.

The employee also alleged that there was an unfair labour practice, but it was held that excluding the employee from the workplace for testing positive for marijuana was not a suspension. It was found that the employee had simply been prevented from attending the workplace until his marijuana levels were at an acceptable level as per the policy. Furthermore, it was held that the employer had taken sufficient steps to reasonably accommodate the employee while he was attending his course as he had been allowed to move to Mossel Bay. His request to work from home was also considered but could not be accommodated because his role required him to be present to assist with boardrooms and meeting rooms and was also 50% client facing.

The application was dismissed.

Dismissal for testing positive for alcohol at the workplace

In Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2023] 10 BLLR 1063 (LC) an employee was dismissed for misconduct after reporting for duty under the influence of alcohol. The employee had already received two final written warnings for testing positive in terms of a breathalyser test. The employee had pleaded guilty to the charge at the disciplinary hearing although he had alleged at the arbitration that he should have instead been charged for leaving work without permission. This was because he had tested positive after undergoing an initial screening test, but he then left work before a second test could be carried out.

The commissioner found that dismissal was too harsh in the circumstances and ordered reemployment.

The matter was then referred to the Labour Court (LC) for review by the employer and the LC had to determine whether the arbitrator had committed a material error that resulted in the award being unreasonable. There were a number of facts that were not in dispute such as the fact that there was a workplace rule regarding testing positive for alcohol in the workplace and the employee was well aware of this rule as demonstrated by the fact that the employee had received previous warnings for the same misconduct. The employee also did not dispute that he tested positive that day although he left the premises before the second part of the test was conducted, allegedly to attend to an emergency. Furthermore, the employee admitted to the charge of being under the influence of alcohol during the disciplinary inquiry.

The LC found that the commissioner had ignored the evidence that the employee had pleaded guilty to the charge and incorrectly found that the employer needed to lead evidence that the employee was unable to perform the work even though this was not the subject of the charge. The commissioner also did not consider the two final written warnings that the employee had on file.

It was accordingly held that the decision by the commissioner was not reasonable as critical evidence had not been considered. The award was accordingly set aside.

Test to be applied for s 197 transfer

In Mobile Telephone Networks (Pty) Ltd and Others v CCI SA (Umhlanga) (Pty) Ltd and Others [2023] 10 BLLR 1006 (LAC) it had to be determined whether s 197 of the Labour Relations Act 66 of 1995 applied in circumstances where a contract came to an end with one service provider but the services of two subcontractors of that service provider continued to be used.

In this case an entity, CCI, was engaged by another entity, MTN, to provide call centre services. These services were provided for about five years and then the contract lapsed. CCI also subcontracted part of the service to two other companies during the term of the contract. When the contract lapsed some of the calls that had been allocated to CCI were redirected to these two subcontracting companies. Forty five employees of CCI resigned and joined one of the subcontractors. The other subcontractor recruited about 270 employees to manage the increase in workflow. CCI then instituted an urgent application alleging that all its employees who had worked on the MTN contract had transferred to MTN and the two subcontractors.

The Labour Court remarked that whether or not there is a transfer of a business as a going concern requires a factual analysis. What is critical is whether the business that is alleged to have transferred has retained its identity. Other critical factors are –

  • whether the components of the old business remain discernible after the transfer;
  • whether these assets of the old business changed hands;
  • whether a significant number of the old employer’s workforce transferred to the new business; and
  • what influence the agreement between the principal and initial ‘outsourcee’ had on the circumstances of the alleged transfer.

It was held that s 197 does not guarantee protection of jobs as there needs to be a discrete business in the hands of the old employer that transfers as a going concern to the new employer and is recognisable in the hands of the new employer. The Labour Appeal Court held that the test to be applied to determine whether there has been a transfer of a business as a going concern is a factual test as opposed to a moral test and is not based on fairness to the employees.

On the facts it was found that there was a discrete MTN business in the hands of CCI but when the contract with MTN lapsed, CCI’s relationship with MTN also ended. It was found that the significant asset of CCI was the contractual entitlement to perform the call centre services for MTN. When this contract came to an end the two subcontractors received more work from MTN and CCI became redundant. It was found that s 197 was potentially triggered because of this additional work taken up by the subcontractors and not the actual lapse of the CCI contract. It was found, however, that just because the same service was now being carried out was not sufficient to trigger s 197 and it ultimately depended on whether the CCI/MTN business unit transferred.

It was held that s 197 did not apply as the calls that were redirected to CCI were now being redirected to the two subcontractors that already performed this service. The subcontractors, therefore, did not require a transfer of equipment or assets to perform this service as they had already been carrying out the service before the lapse of the CCI contract. Therefore, CCI’s return of certain equipment and historical call records to MTN was not necessary for the subcontractors to perform the service and was in fact not provided to the subcontractors. Section 197 accordingly did not apply.

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 (Dec) DR 54.

De Rebus