Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd [2024] 6 BLLR 562 (LAC) Miss Bernadette Enever (the employee) commenced her employment at Barloworld Equipment South Africa (the employer) in April 2007. She ascended through the position levels and was most recently a category analyst.
The employee experienced extreme anxiety and, starting in May 2012, began taking medicine for pain and sleeplessness, which had adverse side effects.
In November 2012, the employee accepted and signed the employer’s policy titled ‘Employee Policy Handbook’ (the policy) which deals with conditions of employment and a zero-tolerance approach to possession and consumption of drugs in the workplace.
In order to avoid the side effects of the prescribed medication, the employee began smoking cannabis in the form of a ‘joint’ in 2018 following the decriminalization of the drug by the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC).
In April 2019, in response to the Prince judgment, the employer sent out a document titled ‘Cannabis is strictly prohibited in the workplace’. The employer emphasised that the decision has no effect on the policy as the workplace is not a private space.
The employee was obliged to undergo a medical examination and a urine test in January 2020. The results were positive. This occurred four times, indicating that she continued to smoke cannabis.
The policy, which incorporated the employer’s Alcohol and Substance Abuse Policy, under ‘Conditions of employment’ stipulates that the employer has a zero-tolerance approach to the possession and use of alcohol and drugs in the workplace. In terms of item 4 of the policy the employer ‘may require their employees to undergo medical examinations during the course of their employment’. Additionally, under item 10.7, the use and possession of alcohol is forbidden and access to the workplace while under the influence of alcohol and/or drugs is prohibited.
According to the policy, for drug testing, there is random, voluntary and scheduled testing. The testing is performed by an occupational health practitioner during annual medicals, pre-employment screenings, after incidents in the workplace, when suspicion arises, after absences exceeding 14 days, and if use or possession is disclosed. If the results are positive or non-negative the employee undergoes a confirmatory test.
If the results of the confirmatory test are positive or non-negative, the process is that the employee is instructed to stay home for seven days using annual leave and if they do not have any, then they are placed on forced unpaid leave. On their return, the test is repeated until the employee tests negative.
As a result of a positive test the employee is subjected to a disciplinary hearing.
The employee was notified of a disciplinary action which took place on 25 February 2020. The employee pleaded guilty. Her version of events was that the prescribed medication caused severe side effects. She started using cannabis which led to lesser anxiety and better sleep with no side effects. She was adamant that smoking cannabis is her right and she will not stop.
The employer acknowledged that at the time of her testing, she was not impaired in the performance of any of her duties. Her work did not involve operating or being exposed to dangerous machinery. The employer representative requested the sanction to be a final written warning. The chairperson’s stance was that the employee made it clear she would not stop smoking cannabis. Therefore, giving a final written warning would be a futile exercise. She was summarily dismissed.
The employee, aggrieved with the sanction, referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). At the CCMA she did not enjoy any significant help due to administrative challenges, delays and setbacks and opted to go to the Labour Court (LC).
The LC was confronted with four issues on which the determination was fixed, namely whether –
The court held that the policy was consistently applied to all employees. The reason for the dismissal was the result of testing positive for cannabis which was a violation of the policy. This court was of the view that there was no discriminatory element present in the application of the policy by the employer. The violation of the policy by the employee gave the employer valid reasons to dismiss her.
Unhappy with the order of this court the employee petitioned to appeal.
This court considered the same points as were brought up before the LC, with the exception that there was no direct connection between the dismissal and the positive test.
This court held: ‘There was no discrimination against the [employee] based on any listed ground, and that the link between her dismissal and cannabis use was not due to her religious or spiritual beliefs. The [employee] admitted that she smoked it recreationally … , which was enough to show that there was no discrimination on religious grounds’ (Andrea Miguel ‘The workplace rights of cannabis users confirmed’ (https://justinedelmonte.co.za, accessed 24-8-2024)). The fact that a test was conducted and the results were positive was not sufficient because it did not mean the employee could not perform her daily duties at work. Further, the work that the employee was doing did not involve handling dangerous heavy machinery.
In line with the Prince case and ‘current legislation, cannabis may only be consumed privately in one’s home’ (Miguel (op cit)). The Prince case dealt with criminal issues rather than labour issues. The right to privacy, which applies to employees as well, was one of the main conclusions of the case. This implies that when enforcing policies, employers cannot disregard an employee’s rights. An employee’s activities at their home cannot be perceived as infringing on their private space, as per the policy.
An employer does not have the right to impose a general policy that ignores the needs of its employees or the workplace in which it operates just because it has a zero-tolerance policy based on concerns about workers’ safety. Workplace policies that infringe upon an employee’s right to privacy or dignity cannot be enforced by an employer.
This means that the zero-tolerance policy implemented by the employer was in violation with the employee’s rights. Furthermore, the policy stretches beyond workplace safety and encroaches on private spaces of an employee which equates to a violation of privacy. This is evident as an employee who smokes cannabis the previous day/night could test positive the next day at work. As opposed to an employee who drinks alcohol the night before could test negative the following day. Cannabis remains in the body’s system so even if an employee is sent home and a re-test is done according to the policy, the results will still be positive.
The court further highlighted that the policy creates a treatment gap between cannabis and alcohol especially where an employee works in an environment that is non-hazardous.
The court concluded that the policy was broad and discriminatory. The court said the employee’s dismissal was automatically unfair and declared the employers Alcohol and Substance Abuse Policy as irrational and in violation of the right to privacy, in so far as it curbs office-based employees that are not dealing with dangerous equipment from consuming cannabis in their homes.
This court awarded 24 months’ compensation to the employee because ‘the [employer] made no effort to meaningfully consider workplace safety in light of cannabis use after the Constitutional Court’s decision in Prince’.
Employers cannot simply enforce a zero-tolerance policy without demonstrating that they have carefully considered the risks associated with employee cannabis use, particularly when it occurs privately at home and the work does not involve dangerous heavy machinery.
Phumzile Penelope Ziqubu LLB (UKZN) is a legal official in Johannesburg. She writes in her own capacity.
This article was first published in De Rebus in 2024 (October) DR 39.
