THE WORKPLACE RIGHTS OF CANNABIS USERS CONFIRMED

THE WORKPLACE RIGHTS OF CANNABIS USERS CONFIRMED IN ENVER V BARLOWORLD EQUIPMENT SOUTH AFRICA, A DIVISION OF BARLOWORLD SOUTH AFRICA (PTY) LTD (JA86/22) [2024] ZALAC 12 (23 APRIL 2024).

The Labour Appeal Court (“LAC”) in Enver v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12 (23 April 2024) contemplated the fairness of the Appellant’s dismissal after she tested positive for cannabis while on duty, and was summarily dismissed.

The events which gave rise to the Appellant’s dismissal occurred on 29 January 2020 when the Appellant was required to undergo a routine medical test, which included a urine test. The Appellant tested positive for cannabis as she was a regular cannabis user and had been using cannabis to treat her pain and anxiety since 2018. The Respondent however, had a strict zero tolerance policy regarding the possession and use of cannabis and the Appellant was subsequently denied access to her workplace and instructed to return to work after seven (7) days. Following this incident, the Appellant tested positive for cannabis again on four (4) separate occasions in February 2020, and each time the Appellant was not permitted to enter the workplace. Disciplinary action was eventually instituted by the Respondent when it issued the Appellant with a notice to attend a disciplinary hearing on 25 February 2020. The Appellant pleaded guilty to the allegations against her on 28 February 2020 but raised the health benefits she had experienced from using cannabis in mitigation. Prior to the outcome of the disciplinary enquiry being released, the Appellant was again denied access to the workplace, and the Appellant’s legal representatives advised her that the Respondent’s policy was discriminatory and unfair, and  even offered to update it at no cost to the Respondent. The offer was rejected by the Respondent. On 30 April 2020, the outcome of the disciplinary enquiry was delivered, the Appellant was summarily dismissed.

Although the Respondent had requested that the Appellant be sanctioned with a final written warning as – she was not impaired in the performance of any of her duties; not suspected of being intoxicated; worked in an office without operating dangerous machinery; and was not required to drive for the Respondent at the time of her testing, the chairperson of the disciplinary enquiry was of a different view. The chairperson believed that a final written warning would be futile in the circumstances as the Appellant made it clear that she would not stop using cannabis as she felt that it was her right to do so. The Appellant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), but later approached the Labour Court (“LC”) as the COVID-19 pandemic had delayed matters in the CCMA.

In the LC

The LC was tasked with determining the following: (1) whether there was differentiation between the Appellant and other employees regarding the Respondent’s policy; (2) whether there was a direct causal link between the Appellant’s positive test and dismissal, thus constituting an act of discrimination against her based on spirituality, conscience, belief or an arbitrary ground; (3) whether the Respondent’s policies were unfair and discriminatory; and (4) whether the Respondent impaired the Appellant’s dignity by adopting an insulting, degrading and humiliating approach.

On the first issue, the LC found that the evidence before it showed that the Respondent’s policy was consistently applied to all employees in that any employee who tested positive for alcohol or other substances was immediately declared unfit for work, denied access to the workplace and sent home. Thereafter, they had to undergo a “clean up” process and were re-tested weekly, with their annual leave being used or the employee being placed on unpaid leave during that period. In this case, the Appellant was treated the same way under the policy as other employees who tested positive. No evidence to the contrary was presented by the Appellant. The LC concluded that the Respondent’s policy created a rule that applied consistently across the board and that differentiating between the Appellant and other employees regarding enforcement of the policy could set a dangerous precedent. The Court further held that, the fact that the Appellant believed her cannabis use was medicinal did not mean the policy should not apply to her. No medical evidence was provided by the Appellant in this regard. Thus, the policy had to be applied consistently, regardless of the reason behind the Appellant’s use of cannabis.

On the second issue, the Respondent conceded that there was a direct causal connection between the Appellant’s positive cannabis test and her dismissal. The Appellant was dismissed because she tested positive for cannabis, which was a breach of the Respondent’s policy; and secondly, the Appellant stated she would not stop using cannabis and that this refusal suggested a final written warning would be ineffective. While the positive test triggered the disciplinary process, the Appellant’s defiance of the policy was found to be what led the chairperson to conclude that dismissal was the appropriate sanction.

On the third issue of whether the Respondent’s policies were unfair and discriminatory, the LC held that the Appellant had to show that the Respondent’s policy differentiated between employees. It rejected the Appellant’s submissions in this regard because the policy was consistently applied to all employees who tested positive. According to the Court, the Appellant failed to properly present evidence of discrimination or explain how the Respondent’s policy was discriminatory. Moreover, her alleged medicinal use was raised late, after being caught and without medical evidence to support it. In the circumstances, her recreational use was found to contradict and diminish her medicinal argument. The Respondent’s policy was thus found to serve a legitimate safety purpose and that it was rationally applied.

On the last issue of whether the Respondent impaired the Appellant’s dignity, the Court found that the matter related to the Appellant’s misconduct, and not discrimination as the Appellant was aware of the Respondent’s policy and still breached it. The Respondent therefore had justifiable reasons for the Appellant’s dismissal. According to the Court, the Appellant wilfully violated the Respondent’s policy and the Constitutional Court’s decision in the case of 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 [2018] ZACC 30 (“Prince Case”), which decriminalised the use and possession of cannabis, had no bearing on the consequences of testing positive for cannabis in the workplace, even in circumstances where an employee smoked at home but the cannabis remained in their system even after they were no longer “stoned”.

The LC concluded that the Applicant’s two claims of discrimination and automatically unfair dismissal must fail and dismissed the matter. The Appellant took the matter on appeal 

In the LAC

The LAC considered the same four (4) questions raised in the LC.

On assessment of the matter, the LAC found that:

  1. Although persons who used cannabis were not afforded the same privilege or exception to consume cannabis at the Respondent’s year-end functions, the differentiation is rational. Alcohol could be easily consumed at and bought for the year-end event, while cannabis could not. In accordance with current legislation, cannabis may only be consumed privately in one’s home, and it is accepted that the workplace is a public space;
  2. The direct causal connection between the Appellant’s positive test and the dismissal was accepted by the Respondent. However, there was no discrimination against the Appellant based on any listed ground, and that the link between her dismissal and cannabis use was not due to her religious or spiritual views. The Appellant admitted that she smoked it recreationally as well, which was enough to show that there was no discrimination on religious grounds;
  3. While the Prince Case did not involve workplace issues, the decision is significant in so far as an individual’s right to privacy is concerned, which is a right all employees have. An employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies. The Respondent’s reason for its zero-tolerance policy did not justify the infringement of the Appellant’s right to privacy. The policy prevented the Appellant from engaging in conduct within the confines of her home, which was irrelevant and of no effect to the Respondent. Furthermore, the use of a blood test alone without proof of impairment on the work premises was a violation of the Appellant’s dignity and privacy;
  4. The Respondent did not prove that the Appellant was “stoned” or intoxicated at work as a result of her smoking, that her work was adversely affected or that she created an unsafe working environment for herself or fellow employees. A mere positive test for cannabis does not address the sobriety of the user or indicate whether they are impaired from carrying out their duties. It was not an inherent requirement of the Appellant’s job that she refrains from smoking cannabis. The Appellant’s ability to perform her work obligations was not impaired. 
  5. Merely having a zero-tolerance policy on the basis of workplace safety does not give an employer the right to have a uniform policy that does not consider the nature of an employee’s job and the environment the employer operates in. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether an employer’s decision is fair and won’t automatically fall in line with an employer’s zero-tolerance approach. The procedural and substantive fairness of a dismissal will be assessed. The law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence; and
  6. The respondent’s zero-tolerance policy was arbitrary. One employee may consume alcohol in their home and have a negative test result at work the following day whereas an employee who smoked cannabis the previous night would test positive. The effect of the Respondent’s policy was that employees who test positive for cannabis would still test positive on their return to work due to the longevity thereof, even if they abstained from using it on the day they are sent home. This was not the case with employees who consume alcohol. There was no rational link between the Respondent’s zero-tolerance policy against personal cannabis use by all its employees in the privacy of their homes and the maintenance of safety in its workplace. 

To conclude, The LAC upheld the Appellant’s appeal and set aside the order of the LC. The LAC found that the Respondent’s policy was too broad and infringed the Appellant’s right to privacy. The Court declared the zero-tolerance policy irrational and in violation of the right to privacy in section 14 of the Constitution, to the extent that it prohibits office-based employees that do not work with, or within an environment that has, heavy, dangerous and similar equipment, from consuming cannabis in the privacy of their homes. The Court held that the Appellant successfully proved her unfair discrimination in terms of section 6(1) of the Employment Equity Act of 1998, as amended and because this is the reason she was dismissed, her dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act of 1995, as amended. The Respondent was ordered to pay the Appellant compensation equivalent to 24 (twenty-four) months’ salary. 

This case is critical in assessing the workplace rights of employees, particularly in respect of zero-tolerance policies. Although the conclusion reached by the LAC was based on a particular set of facts, employer’s should carefully consider the implications of these zero-tolerance policies and the effects thereof on an employee’s right to privacy and dignity. Furthermore, where such policies are implemented, employers must have justifiable reasons. As demonstrated in the LAC decision, averments that a zero-tolerance policy is necessary for occupational health and safety reasons is insufficient justification. The CCMA will not accept a blanket approach in respect of zero-tolerance policies. Where an employer is contemplating dismissing an employee for being under the influence of a substance, having a zero-tolerance policy may not be enough to warrant their dismissal. It must be shown that the employee is impaired, unable to perform their functions and/or a risk to their own health and safety and/or that of their colleagues, amongst others.  

Andrea Miguel – Candidate Attorney 

JUSTINE DEL MONTE & ASSOCIATES INCORPORATED