Commentary from Kerry Fredericks and Bradley Workman-Davies from Werksmans Attorneys.
Bradley Workman-Davies Director
The decriminalisation of the private use of cannabis in South Africa does not open the door for employees to go to work while under the influence, the Labour Court has ruled.
Legal experts Kerry Fredericks and Bradley Workman-Davies from Werksmans Attorneys said that notwithstanding the decriminalisation of the private use, possession or cultivation of cannabis, employees may be dismissed for testing positive for cannabis while in the workplace.
An employee can be dismissed if the employer has adopted a policy prohibiting the use of drugs in the workplace and if its employees have been made aware of such a policy.
In a 2018. the Constitutional Court effectively decriminalised the private use, cultivation and possession of marijuana, giving parliament until 2020 to develop comprehensive laws around this.
“Decriminalisation” took place by the ruling that specific provisions in the Drugs and Trafficking Act and the Medicines and Related Substance Control Act were inconsistent with the right to privacy and thus constitutionally invalid relating to the use, possession and cultivation of the plant.
“Since the “decriminalisation” of the private use of cannabis, not unexpectedly, the Labour Court was recently required to determine whether the dismissal of two employees who tested positive for cannabis in the workplace was substantively fair,” said Werksmans Attorneys.
The case
In the case of NUMSA v PFG Building Glass (PFG case), two employees tested positive for cannabis whilst on duty and were subject to a disciplinary hearing having regard to the employer’s zero-tolerance policy on alcohol and drug abuse, said the firm.
“The employees both pleaded guilty to the charge of testing positive for cannabis while in the workplace and were subsequently dismissed,” Werksmans Attorneys noted.
The employees subsequently referred an unfair dismissal dispute to the CCMA, alleging that their dismissal was substantively unfair on the basis that, inter alia, the Constitutional Court had decriminalised the use of cannabis.
The employer’s case in this regard centred around the fact that its zero-tolerance policy was particularly important considering the hazardous environment in which it operates and that the Constitutional Court had only decriminalised the private use of cannabis but that the workplace was subject to the health and safety rules set out in the Occupational Health and Safety Act.
The arbitrating commissioner held that the dismissal of the employees was substantively fair.
The employees, unhappy with this outcome, took the arbitration award on review at the Labour Court, resulting in the PFG case, said Werksmans Attorneys.
In accordance with the usual test for review of a CCMA award, the Labour Court considered each complaint raised by the employees and found no merit to each of the grounds.
The findings
“Importantly, the Labour Court found that the Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes,” said the firm.
The review was accordingly dismissed by the Labour Court.
Commentary from Kerry Fredericks and Bradley Workman-Davies from Werksmans Attorneys.
Sean Hocking
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