Bernadette Enever // Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd [2022] (LC)

On whom does the onus rest and what are the requirements necessary to prove that unfair discrimination took place in the workplace? This query was addressed in the aforementioned case.

The Applicant was employed during April 2007 and dismissed on 30 April 2020. At the time of her dismissal she held the position of Category Analyst which is a desk position. She was not required to operate heavy machinery nor drive any vehicles. It was common cause that while the Applicant herself did not engage in dangerous services, the Respondent’s workplace was fraught with danger. 

Applicant alleged to suffer from severe and constant migraines and anxiety which affected her wellbeing and sleep. She further alleged that she was prescribed pain and anxiety medication by her GP which she consumed on a daily basis. During October 2018 Applicant claims to have moved away from pharmaceutical drugs and started using cannabis oil and cannabis-rolled cigarettes.

The Respondent has a longstanding Alcohol and Substance Policy (“Policy”) of which the Applicant was at all times aware. In order to gain access to the Respondent’s workplace, the employees had to undergo medical tests. On 29 January 2020 the Applicant’s urine was tested and came back positive for the detection of cannabis in her system. Applicant was informed that she was unfit to continue working and asked to immediately leave the premises. She was placed on a mandatory seven day “clean-up” process. The Applicant was tested on a weekly basis until her test came back negative. During this process she was on paid leave and, if / when her paid leave ran out she would be on unpaid leave. 

It is important to note that at the time of undergoing the 29 January 2020 test she was not impaired nor suspected of being impaired in the performance of her duties. 

The Applicant continued to test positive for cannabis and was denied access to the workplace during February 2020. It was common cause that she continued to consume cannabis for alleged medical and recreational reasons. The Applicant was charged with breaching the Policy and called to a disciplinary hearing on 25 February 2020. Despite the Respondent calling for a sanction of a final written warning, the chairperson recommended that the Applicant be dismissed due to her unequivocal refusal to stop consuming cannabis. 

The Applicant referred an unfair discrimination dispute (section 6 of the Employment Equity Act (“EEA”)) and an automatically unfair dismissal dispute (section 187(1)(f) of the Labour Relations Act (“LRA”)) to the Labour Court (“LC”) which were consolidated. 

The LC reasoned that section 6 of the EEA must be read with section 11 of the EEA, i.e. the EEA requires an applicant to produce some facts in order to prove that unfair discrimination on arbitrary grounds had taken place. Applicant can’t make a bare allegation of unfair discrimination without taking the LC into its confidence about her situation and presenting corroborating evidence in order to prove her case. If the Applicant was able to overcome the hurdle of establishing discrimination then the automatic unfair dismissal case will be afforded a hearing.

During the evaluation of the evidence, the LC considered the following important questions:

  • Was there differentiation between the Applicant and other employees?

Based on evidence presented by the Respondent, the Policy was consistently applied by the Respondent to all of its employees. Once a positive test was released, whether for alcohol or substance, such employee was immediately declared unfit for work and refused entry to the workplace.  

The LC failed to see how the Policy was discriminating against the Applicant on an arbitrary ground. The LC found the Applicant’s argument that the cannabis was used for her medical condition unpersuasive. The LC questioned that, if the Applicant genuinely had a condition, why did she wait until testing positive to bring the Respondent into confidence and disclose the alleged medical condition? The Applicant placed no persuasive evidence before the LC that she did in fact have a medical condition. 

The LC held that the lack of impairment to perform duties is not in itself absolution of misconduct on the employee’s part in terms of an employer policy. 

  • Was there a causal link between the Applicant testing positive and her dismissal?

During the disciplinary hearing the Applicant indicated her unwillingness to cease consuming cannabis as she saw the benefits of the use thereof. The LC held that it was a result of the latter that the Applicant was dismissed and not necessarily the positive test result. It was further held that the chairperson correctly found that a final written warning would serve no purpose for someone who essentially made it clear that she will not stop consuming the cannabis.  

  • Is the Policy discriminatory?

LC was of the opinion that the Applicant’s conduct was misconduct and there were no elements of discrimination and/or automatic unfair dismissal. In addition, the Applicant had failed at the first step, i.e. establishing whether or not the Policy differentiates between employees. Again, the Applicant did not take the LC into its confidence and explain how there was discrimination or how the Policy was discriminating against her specifically. The LC held that the unfair discrimination and automatically unfair dismissal claim must fail as there was no clear preference established.  

In essence, it is important to understand that when claiming unfair discrimination on an arbitrary ground, the employee must discharge the onus placed on him/her in terms of section 11 of the EEA, i.e. definitively explain what and how the conduct amounted to discrimination, that the conduct was not rational; and that the discrimination is unfair.  Merely making a bare allegation of discrimination without substantiating it is not sufficient to be successful with an unfair discrimination claim. 

Candace Bachmann – Associate Attorney

Justine Del Monte & Associates Incorporated