Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC)It is public knowledge that South Africa is one of the countries that has legalised the use of cannabis for private use. This is according to the locus classicus decided by the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC). This case outlines how the right to privacy was used ‘as a gateway to legalise “private use” of cannabis’ (Thato Lentsoe Implications of the use of cannabis in the South African workplace (LLM thesis, University of Johannesburg, 2019)). As a result of this legalisation, there have been conflicting interests between employers enforcing their right to create a safe working environment and cannabis-consuming employees’ rights to privacy and protection from discrimination (Lentsoe (op cit) at ii). This article evaluates the current legal position of an employee who uses cannabis for medicinal purposes in a strictly no substance or alcohol working environment.
Section 23(1) of the Constitution provides that ‘everyone has the right to fair labour practices’. The scope of this section binds employees and employers as it is horizontally applied. This right is given effect by legislative provisions including, the Labour Relations Act 66 of 1995 (LRA), Occupational Health and Safety Act 85 of 1993, and the Employment Equity Act 55 of 1998.
Section 185(a) of the LRA says that every employee has a right not to be unfairly dismissed (Lentsoe (op cit) at 14). ‘When proving the fairness of a dismissal, item 7, schedule 8 of the LRA Code of Good Practice on Dismissals, requires the employer to consider:
“(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard”’ (Lentsoe (op cit) at 14).
The LRA bans the use, possession and influence of any drug substance, including cannabis in the workplace. This may enable an employer to put in place a policy that prohibits the use of cannabis. The consequence is that where an employee breaches that policy, ‘the employer may institute disciplinary action which may subsequently result in a dismissal on the ground of misconduct’ in which s 188(a)(i) lists as a ground for fair dismissal (Lentsoe (op cit) at 15).
According to s 7 of the Employment Equity Act, medical testing on an employee is only permissible if it is justified based on reasons or legislation. It further provides that it is justified based on considerations such as medical facts, employment conditions and social policy.
Regulation 2A(1) of the General Safety Regulations ‘prohibits employees who are under the influence or possessing cannabis’, to enter their respective workplaces or even offer to any other person intoxicating drugs (Lentsoe (op cit) at 16).
In the Labour Court case of Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd [2022] 10 BLLR 962 (LC), the applicant – who was working as a category analyst at Barloworld Equipment at the time of her dismissal – was dismissed. The applicant had signed the respondent’s Employee Policy Handbook, which specifically stated that the Respondent reserves the right to require medical examinations of its employees at any time. The policy also prohibits the use and possession of alcohol and/or drugs in the workplace, and it denies entry to anyone who is under the influence of alcohol and/or drugs.
For testing, the company uses both random volunteer and planned testing, which is performed by an occupational health practitioner during yearly medicals for a variety of reasons. If an employee’s test results are positive, a confirmatory test will be performed, and if it is also positive, the individual will be sent home for seven days and re-tested when they return. The result of this positive test may entail disciplinary action.
The applicant who used cannabis for medicinal purposes pleaded guilty to a disciplinary action after her concurrent drug tests came positive and explained the use of cannabis was to ease her anxiety as she experiences side effects when using prescribed medication. She was thus dismissed by the chairperson of the hearing after she had expressed her intention of not stopping to use cannabis to ease her anxiety.
The applicant viewed this as unfair dismissal and referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) which did not happen as a result of COVID-19 and then approached the Labour Court.
In evaluating the evidence, the court held that it is common cause that the respondent has a duty to put in place safety measures that would safeguard the employees and respondent from liability, and that was through a zero-tolerance measure for misuse of substances.
It held that the issue of the medical condition alleged by the applicant was not as persuasive as she also did not advise her employer of her circumstances, but waited until the drug test and thus there was no sufficient evidence to support the alleged medical condition. ‘The respondent led evidence that, owing to the highly dangerous operations on its premises, it had a zero-tolerance approach to working under the influence of alcohol or drugs’ (Imraan Mahomed and Tiffany Alves ‘“Keep off the grass – Regards, Management” Insight into the private use of cannabis and consequences thereof in the workplace’ (www.cliffedekkerhofmeyr.com, accessed 31-8-2024)). The court relied on Mgobhozi v Naidoo NO and Others [2006] 3 BLLR 242 (LAC), where it was held that if one wanted to rely on a medical condition, it must be proven by expert evidence. Consequently, the court found that the applicant’s argument in raising her medical condition was unsustainable as she did not properly approach the respondent to find a practical solution to her problem.
In April 2024, the Labour Appeal Court decided on the applicant’s (now referred as the appellant) case and dealt with issues including whether there was differentiation between the appellant and other employees.
In order to establish whether the policy discriminated against cannabis and alcohol users based on arbitrary criteria, the appellant had to demonstrate that her human dignity was being violated in a way that was equivalent to discrimination based on a stated ground.
While users of cannabis and alcohol were sent home if their tests were positive, users of alcohol were allowed to come back to work the next day provided their tests were negative. Cannabis has been discovered to remain in the body for a longer amount of time, so this would not apply to users. Therefore, a positive cannabis test result does not address the user’s sobriety or whether it prevents them from performing their job tasks.
Although the respondent worked in a hazardous setting, involving heavy machinery, the court ruled that the policy was unduly broad and that a person working in an office could not be subject to the same standards. The court rejected the argument that the zero-tolerance rule was justified because the respondent worked in a generally risky workplace or that it was an inherent requirement of the employment not to ingest cannabis. The court thus found there to be automatically unfair discrimination.
What can be inferred from the Labour Appeal Court’s decision is that a positive cannabis test and intoxication are not always mutually inclusive. According to NUMSA obo Harris v Bargaining Council and Others (LC) (unreported case no JR637/2012, 29-7-2015) (Coetzee AJ) at para 5-9, cannabis can last for up to six weeks in a person’s body resulting in positive drug tests. It is thus important for employers to re-evaluate their policies regulating drug (cannabis) testing to avoid potential disputes of unfair dismissal as a result of discrimination.
Matlhatsi Motau LLB (UJ) is a candidate legal practitioner at WMN Attorneys Inc in Johannesburg.
This article was first published in De Rebus in 2024 (October) DR 40.
