South African court highlights need for ‘rational’ zero-tolerance cannabis policy

In its judgment, the LAC found that the dismissal of an employee for testing positive for cannabis which she consumed off duty constituted unfair discrimination under the Employment Equity Act 55 of 1998 (EEA). The LAC also found that the dismissal was automatically unfair dismissal in terms of the Labour Relations Act 66 of 1995 (LRA).

The LAC reached this conclusion on the basis that the employer could not establish that the employee reported for duty whilst intoxicated from cannabis and because the employer’s zero tolerance policy against testing positive for cannabis effectively precluded the employee from using cannabis when off duty.

“The central principle that the judgment establishes is that the use of a blanket zero tolerance policy against testing positive for cannabis may constitute an unjustifiable violation of the employee’s constitutional right to privacy and amount to unfair discrimination. The judgment, however, does recognise that certain positions carry an inherent degree of risk which can justify prohibiting employees from using cannabis outside the workplace, such as when they operate heavy machinery which carries the potential to cause serious harm to other employees or people”, said David Woodhouse, an employment law expert at Pinsent Masons.

“At the same time, the judgment deals with a very specific scenario. It does not deal with a situation where an employee reports for duty whilst intoxicated from cannabis. In these circumstances, an employer is justified in taking disciplinary action which include the dismissal of the employee”, Woodhouse added.  

The decision follows the 2018 judgment of Minister of Justice and Correctional Services v Prince (Prince) which declared that the criminalisation of cannabis use in a private space is unconstitutional.

The case involved an employee who worked as a category analyst at Barloworld Equipment South Africa (Barloworld). Barloworld’s core business is to provide and service earthmoving equipment and power systems in sectors such as mining and engineering.

The employee signed a Barloworld policy when commencing employment which formed part of the terms and conditions of her employment. The policy provides that Barloworld has a zero-tolerance policy against its employees reporting for duty whilst under the influence of alcohol or drugs. The policy further provides that Barloworld can require its employees to undergo medical examinations, including drug tests. The policy states that should a drug test detect the presence of drugs in the system of an employee, the employee will be denied access to the workplace for seven days and only be allowed to return after they provide a negative test, and disciplinary action could be taken.

After the decision in Prince was delivered by the Constitutional Court, Barloworld informed its employees that the zero-tolerance principle would not be affected because the workplace is not a private space.

The employee in this case began using cannabis in 2018 after the Prince decision was delivered. During the various court proceedings, the Employee stated that she began using cannabis in the evenings and on weekends in order to reduce her reliance on prescription medication for anxiety.

In 2020, a routine drug test detected the presence of cannabis in her system. Four subsequent tests returned the same result. The employee was accordingly charged with misconduct for breaching the zero-tolerance policy. After pleading guilty at her disciplinary hearing, she was dismissed.

Following her dismissal, the employee referred a dispute to the Labour Court, which challenged the fairness of her dismissal on two grounds - she was subjected to unfair discrimination in terms of the EEA ;and her dismissal was automatically unfair in terms of section 187 (1)(f) of the LRA.

The Labour Court found that Barloworld applied the policy consistently to all employees and that the policy sought to achieve the legitimate purpose of ensuring health and safety in the workplace. The Labour Court also held that the employee made it clear that she would not stop using cannabis in contravention of the zero-tolerance policy, which constituted misconduct. The Labour Court concluded that a final written warning would therefore not have been an appropriate sanction.

The case was then appealed to the LAC. The LAC identified four issues for determination. Firstly, whether the company treated the employee differently to other employees who did not use cannabis.  Secondly, whether the differential treatment of the employee constituted an act of unfair discrimination based on her spirituality, conscience or religion or any arbitrary ground and whether there existed a connection between any unfair discrimination and the dismissal. Thirdly, whether the policy was unfair and discriminatory and finally, whether the employee was treated in an insulting, degrading and humiliating manner which impaired their dignity.

Barloworld did not dispute that the positive test was the reason for dismissal but disputed that this meant that the employee was subjected to unfair discrimination. Barloworld argued that its policy sought to achieve the legitimate purpose of ensuring a safe and healthy working environment and was applied to all employees equally.

In assessing the grounds for unfair discrimination raised by the employee, the LAC rejected the argument that the employee was discriminated against based on conscience, belief, spirituality, or religion as they admitted to recreational use. This was because the employee admitted during the court proceedings that she also used cannabis for recreational reasons and was not compelled to do so based on any religious or spiritual practice or belief.

The second ground relied upon by the employee was that the policy was irrational and treated her differently to other employees who used alcohol outside working hours. The employee argued that this differential treatment violated her rights to dignity and privacy and that her cannabis use in the privacy of her home outside working hours did not a pose a risk to herself or other employees.

The LAC accepted this argument and rejected Barloworld’s argument that the zero tolerance could be applied in an indiscriminate manner to all employees. This was because the indiscriminate application of the policy effectively precluded employees from using cannabis in the privacy of their homes whilst the same prohibition would not apply to employees who drink alcohol outside working hours. This was because the indiscriminate application of the policy effectively forced the employee to choose between engaging in conduct which had no effect on the rights of their employer in a private setting and losing their employment.

The LAC found that employers cannot disregard employees’ constitutional right to privacy when implementing and enforcing workplace policies.

The LAC found that a generally dangerous workplace does not justify the indiscriminate application of a zero-tolerance policy and that there existed no rational connection between applying the policy to the employee and the maintenance of health and safety in the Barloworld workplace. However, the LAC highlighted that the matter would be different for employees who are found to be intoxicated at work or who operate heavy or dangerous machinery.

The LAC stated that the same principle does not apply to employees who report for duty whilst intoxicated from cannabis or use cannabis in the workplace. In these scenarios, the LAC accepted that the dismissal of an employee for cannabis use could constitute a fair reason for their dismissal.

On this basis the LAC upheld the appeal and set aside the Labour Court judgment which was substituted with an order that the employee was subjected to unfair discrimination in terms of the EEA and that her dismissal was automatically unfair. The LAC also ordered Barloworld to pay the employee 24 months’ compensation.

Annelle Kamper, a Senior Associate at Pinsent Masons said “The judgment highlights the importance of ensuring that the employer can establish that an employee is ‘intoxicated’ at the workplace. The reasoning of the LAC indicates that the mere presence of cannabis in the system of an employee does not establish that the employee is impaired or that they were intoxicated at the workplace. The consequence of this is that it is not beyond the realm of imagination that an employee who is found to have cannabis or even alcohol in their system may argue that they were not intoxicated.  The point of a zero-tolerance policy, whether it is applied to alcohol or cannabis, is to not to impose unjustifiable infringements on the rights of employees to use these substances outside the workplace but are intended to avoid debates regarding whether an employee is intoxicated or not.”