On 1 June 2022 the Labour Court found that the dismissal of an employee for contravention of the employer’s zero-tolerance Alcohol and Substance Abuse policy, by repeatedly testing positive for having cannabis in her system, did not amount to unfair discrimination nor an automatically unfair dismissal. [Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS633/20 and JS926/20, 1 June 2022, Labour Court) in which Norton Rose Fulbright acted for Barloworld Equipment]  The employee, contended that her dismissal amounted to unfair discrimination on the basis of her spirituality, conscience and belief and on arbitrary discriminatory grounds.  She sought relief for the alleged unfair discrimination in terms of section 6(1) of the Employment Equity Act, 1998 and section 187(1)(f) of the Labour Relations Act, 1995 .

The employer’s core business entails the supply of earthmoving equipment and power systems primarily to its customers in the mining and civil engineering industries.  This meant that its employees frequently work in hazardous environments and are also required to comply with its customers’ safety requirements.  The employer’s zero-tolerance policy in respect of alcohol and substance abuse was designed to safeguard and promote the health and safety of its employees, customers and other stakeholders.  The employee occupied a typical desk job and her role did not place her in any direct danger.  She was tested, not because she was suspected of being in possession or under the influence of cannabis or any other substance, but as part of routine testing required to afford employees biometric access to the premises.

After testing positive for the presence of cannabis in her system, the employee was required to vacate the employer’s premises and to return for testing every seven days.  Thereafter the employee tested positive for cannabis on four more occasions.  The employer convened a disciplinary hearing at which the employee was charged with misconduct for non-compliance with the zero-tolerance policy.  She did not deny that she used cannabis.  On the contrary she admitted that she used cannabis for medicinal and recreational purposes, outside of work, and contended that it was her right to do so, relying on the judgment of the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton. [(CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18 September 2018)] The employee was also unequivocal that she would continue to consume cannabis.  Therefore, despite her clean disciplinary record and 13 years of service, she was dismissed.

Before the Labour Court, the employee argued that the employer had discriminated against her on the basis of her spirituality, conscience, belief and arbitrary discriminatory grounds.  She claimed that the employer treated her differently to employees who were found to have consumed alcohol.  In determining whether or not there had been any unfair discrimination and automatically unfair dismissal, the Court:

  • Found that the employer’s policy was reasonable and that it could not be expected to have different policies for different categories of employees.
  • Accepted that the zero-tolerance policy was applied consistently to both employees who tested positive for alcohol and those who tested positive for cannabis.
  • Found that the employee failed to establish that she needed to take cannabis for medical reasons.  The Court was of the view that this defence was an after-thought, and that if the employee truly needed to consume cannabis for medicinal reasons, she ought to have disclosed this to the employer upfront in the hope of finding a solution, instead of waiting to be caught out.
  • Rejected the use of cannabis for recreational purposes as an acceptable reason to circumvent the employer’s rules.

Ultimately the Court found that there was no differentiation in the treatment of employees who tested positive for alcohol and those who tested positive for cannabis.  In failing to establish this first requirement, the test for unfair discrimination was not met and, accordingly, the employer had not unfairly discriminated against the employee, nor was her dismissal automatically unfair.  In reaching this conclusion, the Court made the following pertinent statement:

“Whilst the Applicant raises the Constitutional Court case which decriminalised/legalised the use of cannabis in private space, which case law I am aware of but I am not going to get into that fray at this stage, I am however strongly of the view that the Respondent, in light of its dangerous environment, is entitled to discipline and dismiss any employee who uses cannabis or is under the influence whilst at work in contravention of its policy.  Unfortunately, the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies.  While I note that the Applicant herself did not engage in such dangerous services, there is nonetheless no question that the Respondent has a workplace that is fraught with danger.  The Applicant tested positive for cannabis and continued to test positive simply on her perpetuated act of consumption of the substance which she made it rather clear that she will not refrain from.”

This judgment is important, especially for employers who operate in hazardous environments, who seek to implement zero-tolerance policies, as opposed to only prohibiting employees from being ‘under the influence’ of intoxicating substances whilst on duty.  The decriminalisation of the use of cannabis by individuals in private is not a licence for employees to come to work whilst possibly intoxicated.

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