President Cyril Ramaphosa signed the Cannabis for Private Purposes Bill, now referred to as the Cannabis for Private Purposes Act into law last month. The enactment is significant as it may result in more individuals cultivating cannabis for their private use.
But it also calls for employers to review their policies, as some employees may perform their duties whilst under the influence of cannabis in the workplace, lawyers Nicolette van Vuuren and Jamie Jacobs of the law firm Webber Wentzel said.
According to them, the recent Labour Appeal Court judgment of Enever v Barloworld Equipment, was significant now, as employees were likely to consume cannabis in the private spheres of their lives more freely.
The recent Labour Appeal Court (LAC) judgment of Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd exposed the need for a review of work place policies regarding cannabis, the lawyers said.
In this case, the employee worked as an analyst at Barloworld, which operates in the equipment production sector. Her role was limited to desk work and required no interaction with any production lines.
Barloworld’s applicable policies prohibited the possession and consumption of alcohol and cannabis in the workplace and mandated routine or random drug testing. If an employee tested positive for a substance, they were required to remain at home for seven days.
Upon completing this period, they must test negative on another drug test before being allowed to return to work.
Following a random drug test, the employee tested positive for cannabis as she was a regular cannabis user. She was therefore sent home in accordance with the policy. She tested positive on a further four occasions and during the disciplinary enquiry into her alleged misconduct, the employee stated that she would continue to consume cannabis, which culminated in her dismissal.
She argued that the policy unfairly distinguished between alcohol and cannabis users, employed a discriminatory testing approach, discriminated against her religious use of cannabis, and invaded her right to privacy.
Given that cannabis can remain in a person’s system for several months at a time, while alcohol can exit within a day, the employee argued that this permitted employees who tested positive for alcohol to return to work the next day whilst cannabis users would have to spend seven days away from work.
The court found that the zero-tolerance policy and the approach to testing for substances discriminated against the employee, with the consequence of infringing on her right to dignity.
The employee also found success in her submission that the policy invaded her right to privacy, as the employer failed to establish that an employee’s consumption of cannabis in her private capacity impaired her ability to perform within her role.
“The court found that when objectively considered, the actual effect of the employer’s policy was that an employee cannot consume cannabis at all and applied the principle that overbroad, unwarranted, and unjustifiable invasions of the right to privacy are unconstitutional,” the lawyers explained.
They said the extent to which a workplace policy might infringe the right to consume cannabis in private will depend on several issues, which include the nature of the employee’s role; the nature of the workplace; and the statutory requirements for safety.
The court found the dismissal to be automatically unfair based on unfair discrimination and awarded the employee 24 months’ remuneration as compensation.
“Where a zero-tolerance stance has been adopted, employers should review the substance use policies in place to determine whether a zero-tolerance approach is justifiable in the context of that workplace,“ Van Vuuren and Jacobs advised.
They said this should be done with due consideration to the nature of the operations, and the inherent requirements of the roles executed in that workplace.
“Where it is determined that a zero-tolerance stance is not operationally justified, employers are still within their rights to regulate substance use by other means, including establishing cut-off limits.”
They said employers must also take heed of the fact that there was a growing need to have the appropriate substance use policies and procedures in place, which addressed the use of cannabis, among other substances, bearing in mind the likely increase in the private use of cannabis in light of the Cannabis Act.
“Where employers fail to take a balanced approach in addressing cannabis in the workplace, their employees may successfully claim unfair discrimination, as was done in Enever, resulting in compensation being ordered by the Labour Court,” they warned.
Pretoria News