In a recent Labour Appeal Court judgment handed down on 23 April 2024 in respect of Enever vs Barloworld Equipment South Africa, the Labour Appeal Court had to pronounce on whether cannabis and alcohol can be treated the same in respect of workplace rules.
In this matter the Applicant was dismissed for testing non-negative for cannabis while on duty during her routine medical check.
The main issue related to the effect of the Constitutional Court’s decision in Minister of Justice and Constitutional Development vs Prince (Prince) on workplace discipline, following a positive cannabis test. In that decision, the criminal prohibition against adults cultivating, possessing and using cannabis in the privacy of their homes, was declared unconstitutional.
At the time of the Applicant’s dismissal from the employ of Barloworld, she held the position of Category Analyst.
In the Respondent’s Employee Policy Handbook, it explicitly states that the Respondent may require its employees to undergo medical examinations during the course of their employment. Further, it forbade the use and possession of alcohol while also prohibiting access to the workplace for anyone under the influence of alcohol and/or drugs. The Respondent’s Alcohol and Substance Abuse Policy was incorporated into the Employee Policy Handbook.
The Alcohol and Substance Abuse Policy has a zero-tolerance approach to the possession and consumption of drugs and alcohol in the workplace.
Should an employee return a positive or non-negative result, they will be subjected to a confirmatory test. Where the confirmatory test result is also positive or non-negative, the employee is sent home for a period of 7 days, to be retested upon returning after that period. This process is repeated until the employee tests negative. During the time at home, the employee must use any remaining annual leave they may have and if they do not have any, they are placed on forced unpaid leave. In addition, and following a positive test, disciplinary action follows in line with the Respondent’s zero tolerance approach to the possession and use of alcohol and drugs in the workplace.
After the Constitutional Court judgment in Prince was handed down in September 2018, the Respondent sent out a document titled “Cannabis is strictly prohibited in the workplace”. In this document it is stated that while cannabis use was decriminalised for adults in the privacy of their homes, the decision would not have any bearing on the zero-tolerance policy regarding the possession and use of cannabis as the workplace was not a private space.
From May 2012, the Appellant’s general practitioner prescribed her medication for pain and sleep due to severe anxiety. However, she suffered from side effects from the prescribed medicine. After the decriminalisation judgment in Prince, she began using cannabis which she says eventually helped reduce her reliance on prescription medication. In essence, she said she saw improved relief from cannabis-based products without any of the side effects. She says that she smokes a rolled-up cannabis cigarette (“a joint”) every night and on weekends, along with daily use of cannabis-based products like cannabis oil.
On 29 January 2020, the Appellant was required to undergo a medical test which included a urine test. The test results came back positive for cannabis, as expected given the Appellant is a regular user. She was denied access to the workplace and told to go home and return after 7 days. This happened on 4 further occasions with all the results coming back positive as the Appellant did not stop using cannabis.
A notice of disciplinary action followed on 25 February 2020 and the Appellant pleaded guilty on 28 February 2020. She raised all of the aforesaid benefits of the use of the cannabis in her mitigation. It was also suggested to the Respondent that its policy was discriminatory and unfair because it did not differentiate between cannabis and alcohol users.
On 30 April 2020, the outcome of her enquiry was delivered where she was summarily dismissed. Even though the Respondent did not seek a dismissal, the Chairperson of the hearing found that it would be futile to give her a final written warning as she had made it clear that she would not stop using cannabis, as it was her right to do so.
It was accepted by the Respondent that at the time of her testing, she was not impaired in the performance of any of her duties or suspected of being intoxicated and that she worked in an office without operating dangerous machinery, nor was she required to drive for the Respondent.
Subsequent to her dismissal, the Appellant referred her discrimination and unfair dismissal dispute to the Labour Court. The Labour Court dismissed her claim.
The differentiation between alcohol and cannabis use On the topic of differentiation between alcohol and cannabis use, the Court concluded that the crux of the matter arose from the reason cannabis users are immediately sent home for a minimum of 7 days, whereas it emerged during the trial that alcohol users who test positive can, and often do return the next day to be retested, and as long as they do not consume alcohol on that day, they are effectively guaranteed to test negative on a breathalyser. If a cannabis user is retested the next day, they are likely to still test positive with a blood test, despite not consuming cannabis on the day they were sent home.
The Appellant contended that her use of cannabis in the evenings and on weekends in the privacy of her home is her right and that the Respondent’s policy violated it.
The Labour Appeal Court disagreed with the Labour Court which decided that the Prince judgment addressed criminality and not labour relations.
The Labour Appeal Court considered the significance of the Prince decision in relation to the right to privacy, which all employees have. As such, an employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies. What is apparent from the Respondent’s policy is that an employee who works for it cannot smoke cannabis at all.
It is correct that employers are not completely barred from asking their employees to completely refrain from certain conduct. Policies against drug and alcohol use are standard and are aimed at complying with Section 8(1) of the Occupational Health and Safety Act. It is on this basis that the Respondent justified its violation of the Appellant’s right to limiting what she does in her own private time outside the workplace.
The Labour Appeal Court did not find this a justifiable reason for the infringement of the Appellant’s right to privacy.
The Labour Appeal Court concluded that the principle relied on by the Respondent was overbroad, unwarranted and an unjustifiable invasion of the right to privacy, which rendered it unconstitutional.
The Labour Appeal Court concluded that in the context of the right to privacy, the fact that the Appellant enjoyed a joint during her evenings in the privacy of her home is completely irrelevant to an employer. Furthermore, the use of a blood test alone without proof of impairment on the work premises, is a violation of the Appellant’s dignity and privacy. This is so as the Respondent’s policy prevents her from engaging in conduct that is of no effect to her employer, yet her employer is able to force her to choose between her job and the exercise of her right toconsume cannabis.
The Labour Appeal Court also indicated that the Respondent had not shown that she was ‘stoned’ or intoxicated at work, and as such that her work was adversely affected or that she created an unsafe working environment for herself or fellow employees.
As cannabis stays in the bloodstream for longer than in the case with alcohol, 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. A further consideration was that the Appellant did not operate or work with any heavy or dangerous machinery. Her job was plainly an office job and therefore the Court did not accept that the Respondent has a generally dangerous workplace that justifies the rule on the basis of the inherent requirements of the job.
The Labour Appeal Court was at pains to point out that it had reached a fact- specific conclusion based on the nature of the Appellant’s job. It hastened to add that its judgment does not extend to anyone of the Respondent’s employees, some of whom perform drastically more dangerous jobs and for whom not being able to smoke cannabis at all, may be justified.
The Respondent attempted to raise the impracticality of having to adopt different policies for alcohol and cannabis and indicated that it has over 3,600 employees in multiple countries, and that it cannot create specialised policies for everyone.
This argument also did not find favour with the Labour Appeal Court as it concluded that the Respondent’s operational convenience cannot trump the application of the Labour Relations Act.
In conclusion, the Labour Appeal Court found that the Respondent’s policy is overbroad and infringes the Appellant’s right to privacy. It further found that the Appellant’s treatment as someone who was ‘intoxicated’ when she in fact was not, is unfair discrimination because it singles out cannabis users compared to alcohol users for what they do at home, even in situations where their conduct carries no risk to the employer.
Because of this finding, the Labour Appeal Court set aside the Labour Court’s award and replaced it with an award that declared the Respondent’s Alcohol and Substance Abuse Policy irrational and in violation of the right to privacy in Section 14 of the Constitution. It also declared that the Respondent subjected the Applicant to unfair discrimination and that her dismissal was automatically unfair. As a result, the Respondent was ordered to compensate the Appellant by paying her 24 months’ compensation.
Analysis
It would be surprising if this judgment is not taken on appeal to the Constitutional Court.
The argument regarding the practicality and convenience for an employer of a significant number of employees to have to establish different policies for those who test positive for alcohol as opposed to those who test positive for cannabis use, unreasonably burdens an employer with how it ensures safety at the workplace and conformity in its disciplinary policies.
It is difficult to understand how it can be objectionable to have a zero-tolerance policy to testing positive for alcohol, drug or cannabis within your bloodstream when you attend at your employer’s workplace. If such a policy is known to the employees, and they object thereto because of exceptional circumstances such as cultural or religious beliefs or medicinal use of cannabis outside of working hours, then they should disclose same to the employer and request that he/she be exempt from the policy (in these limited circumstances). This should certainly be the exception rather than the rule.
Finally, it is difficult to conceive what policy an employer would be able to put in place to police cannabis users. The beauty of a zero-tolerance policy is its simplicity. Also, the differentiation in treatment of alcohol and drug users as opposed to cannabis users may arguably constitute unfair differentiation in itself.
