Cannabis: Zero tolerance approach shot down

by Jan Truter

A ‘zero-tolerance’ approach towards employees who are under the influence of alcohol and other intoxicating substances is a fairly common phenomenon in the workplace. However, some workplace policies go so far as to prohibit the mere presence of alcohol or drugs in their employees’ systems/bodies. But is a blanket prohibition appropriate? The Labour Appeal Court recently overturned the decision of the Labour Court in a cannabis-related case, with very costly consequences for the employer.

In 2018 the Constitutional Court (CC) in Minister of Justice & Others v Prince & Others, decriminalised the cultivation, possession and use of cannabis for private purposes. It did not provide any answers about the use of cannabis during working hours, the possession thereof on the employer’s premises and what policies employers may implement.

Since then, the Labour Court and Labour Appeal Court have taken some strides in developing the law in this regard.

Dismissal for cannabis in an employee’s system/body

In the Labour Court (LC) case of Bernadette Enever and Barloworld Equipment, a Division of Barloworld SA (Pty) Ltd (2022) the Court had to decide whether the dismissal of an employee who allegedly used cannabis for medical reasons amounted to (a) unfair discrimination in terms of the Employment Equity Act (EEA); and (b) an automatically unfair dismissal under the Labour Relations Act (LRA). The following facts are pertinent:

a. The employee had more than 13 years of service with a clean disciplinary record at the time of her dismissal.

b. While safety was of paramount concern for the employer, given the nature of the equipment and machinery it operates, the employee’s job did not entail contact with, or operation of dangerous equipment or machinery.

c. The employer had a strict alcohol and substance policy in place, of which the employee was aware. It requires employees to undergo medical tests to gain biometric access to the employer’s premises.

d. The employee – who was aware of the policy – failed several consecutive urine tests as a result of the presence of cannabis in her system/body.

e. She was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of cannabis could be said to be a risk to her own safety or that of her fellow employees. She was also not in possession or suspected of being in possession of the cannabis whilst at work.

f. While she alleged that she used cannabis for medical purposes, she only raised this as a defence during her disciplinary hearing but did not provide any proof to that effect.

g. It was clear from her testimony at her disciplinary hearing that she did not intend to stop using cannabis.

h. There was no indication that the employer acted inconsistently regarding the application of the policy.

When is someone ‘under the influence’?

The active compound in marijuana‚ tetrahydrocannabinol (THC)‚ can apparently linger in a person’s system for weeks and even months for heavy users – far longer than is the case with alcohol. This means that an employee who legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday, but will no longer be under the influence, and is unlikely to be impaired. In other words, even if a person is no longer ‘high’‚ he or she can still test positive for the substance. In a previous article, we suggested that the mere presence of cannabis would not be sufficient to prove that a person is under its influence.

However, the LC held that proof of impairment is not required and that it can automatically be assumed that one is under the influence of cannabis due to its intoxicating nature.

The Labour Court’s decision

The LC ultimately concluded that the employee had failed to show that she had been discriminated against on medical or any other arbitrary grounds. Because no unfair discrimination had been established, the Court found it unnecessary to consider whether her dismissal was unfair in terms of section 187(1)(f) of the LRA. Although the LC came to some interesting conclusions – e.g. that the policy served a legitimate safety purpose and it had been rationally applied – questions surrounding the validity and fairness of a zero-tolerance approach were not properly addressed.

On 23 April 2024, the finding of the LC was overturned by the Labour Appeal Court (LAC). The LAC canvassed the zero-tolerance issue at length.

The Labour Appeal Court

The LAC judgement is lengthy and difficult to read, but the Court’s reasoning can be summarised as follows:

a. The Court found that there had been no discrimination based on any listed ground.

b. Given the employee’s “recreational” use of cannabis, there was no basis to argue that she had been discriminated against on religious grounds, conscience or belief.

c. Workplace policies against drug and alcohol use are standard and are aimed at complying with section 8(1) of the Occupational Health and Safety Act. Act 85 of 1993 which states that “[e]very employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”. This must be read with regulation 2A which states that “[s]ubject to the provisions of sub-regulation (3), an employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.”

d. The crux of the matter arose from the fact that employees who had been tested positive for cannabis were immediately sent home for a minimum of seven days, whereas alcohol users who tested positive could, and often did return the next day to be re-tested. If they did not consume alcohol on that day, they were effectively guaranteed to test negative on a breathalyser. If a cannabis user were to be re-tested the next day, they were likely to still test positive even if they did not subsequently use cannabis and were no longer “high”.

e. The Court described this as “a situation where the employee would smoke her joint at home, sober up, and then in the morning go to work where she did her office job ably and competently without posing a safety risk to herself or her fellow employees”.

f. Given the fact that the employee had an office job, smoking cannabis at home could not be considered, in the context of the facts of this case, to impair the employee’s ability to perform her designated job.

g. The Court did not find the employer’s reliance on the occupational health and safety legislation a justifiable reason for infringing the employee’s right to privacy; i.e. limiting what she did in her own time outside the workplace.

h. The employer’s approach was unconstitutional as it amounted to an “overbroad, unwarranted and unjustifiable invasion of the right to privacy”.

i. In a broader context, the Court could find no rational link between the zero-tolerance policy against personal cannabis use by its employees in the privacy of their homes and the maintenance of safety in the workplace.

j. The Court found that the employer’s actions violated the employee’s dignity in a comparable manner to discrimination based on a listed ground.

k. The employee had therefore been discriminated against on an arbitrary ground; i.e. the invasion of her constitutional right to privacy.

l. The discrimination was found to be unfair as the employer was unable to justify it on the basis that it was an inherent requirement of the job that there should be no trace of cannabis in the employee’s system (even if she was not “under the influence”).

m. The Court nevertheless acknowledged that workplaces have different configurations and that the conclusion reached in this case was based on the particular facts and the nature of the employee’s job.

The outcome

In short, the Court found that the employer’s Alcohol and Substance Abuse Policy was irrational and violated the right to privacy in terms of section 14 of the Constitution. The employee had also been unfairly discriminated against on an arbitrary ground in terms of section 6(1) of the Employment Equity Act. Furthermore, her dismissal was declared to be “automatically unfair” in terms of section 187(1)(f) of the Labour Relations Act.

The LAC awarded the employee 24 months’ compensation, amounting to a total of R1 036 794.00. This is a somewhat disturbing outcome if one bears in mind that, unless the employer finds grounds to challenge the judgement in the Constitutional Court, the final word has been spoken.

Conclusion

Employers are advised to be extremely circumspect when devising and implementing policies surrounding the testing for cannabis, alcohol and other drugs. This is particularly important if they want to adopt a zero-tolerance approach. Consideration needs to be given to the nature of the workplace, the inherent requirements of the job, distinguishing between the effects of different drugs, the link between the result of an alcohol/drug test and the impact it would have on the employee’s ability to do a particular job, and the threat to health and safety in the workplace.

Given the far-reaching implications of the LAC’s judgement, employers would be well advised to review their alcohol and substance abuse policies.

Further comments

Although the LAC has canvassed the relevant points in detail and the judgement appears to be well reasoned, we have the following reservations:

1. Has the constitutional right to privacy been taken too far?

Section 14 of the “Bill of Rights” reads as follows:

“14. Privacy
Everyone has the right to privacy, which includes the right not to have -
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”

Although the rights are not limited to the four examples mentioned, the examples are clearly serious violations of the right to privacy. But was the violation perpetrated by Barloworld really of a similar serious nature? On the facts of this matter, the infringement of the right of privacy was perhaps not as invasive as the obvious examples listed in section 14 and the exercise by the employer of its right and responsibility to ensure a safe work environment was not a gratuitous overreach.

2. To what extent was the employee’s right to dignity violated?

The listed grounds for discrimination in the Employment Equity Act and Labour Relations Act appear to be primarily aimed at protecting the vulnerable and marginalised in society. The employer’s application of an irrational policy was undoubtedly unfair. But did the employer’s actions really violate the employee’s dignity in a comparable manner to discrimination based on a listed ground? If not, she would still have adequate remedies available to her if she referred the matter to the CCMA. Another debatable point.

3. Too much compensation?

Finally, we are of the view that the amount of compensation awarded is exorbitant, especially considering that until the LAC’s judgement the boundaries for zero-tolerance policies had not been properly canvassed by the judiciary. According to the LAC, the Labour Court even got it wrong. Moreover, the LAC remarked that the employer had “followed a procedurally fair process and the decision, although substantively unfair, would have been fair if the legal position they adopted was the correct one”.

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