On 28 May 2024, President Cyril Ramaphosa signed the Cannabis for Private Purposes Act (No 7 of 2024) into law. The Act will create inroads for establishing a framework within which, once it is implemented, cannabis use for private purposes may be regulated.
Furthermore, this enactment is significant as it may result in more individuals cultivating cannabis for private use, within the confines of its provisions. Certain of these individuals may be employees who may perform their work while under the influence of cannabis.
Enever vs Barloworld
The recent Labour Appeal Court (LAC) judgment in the case of Enever v Barloworld Equipment is more significant now, as employees are likely to consume cannabis in the private spheres of their lives more freely.
This may result in said employees being under the influence of cannabis in the workplace.
In the abovementioned case, the court considered four issues raised by the employee:
- Whether the employer differentiated between her and other employees;
- Whether there was a causal link between her dismissal and her consumption of cannabis;
- Whether the employer’s policies were unfairly discriminatory; and
- Whether the employee suffered impairment to her dignity as a result of the employer’s policies.
The employee worked as an analyst at Barloworld Equipment, a division of Barloworld South Africa, which operates in the equipment production sector. The employee’s role was limited to desk work and required no interaction with any production lines.
Barloworld’s applicable policies prohibited the possession and consumption of alcohol and cannabis in the workplace and mandated routine or random drug testing. If an employee tested positive for a substance, they were required to remain at home for seven days.
Upon completion of this period, the employee was required to test negative on another drug test before being allowed to return to work.
Following a random drug test, the employee tested positive for cannabis as she was a regular cannabis user. She was, therefore, sent home in accordance with the policy.
The employee tested positive on a further four occasions and, during the disciplinary enquiry into her alleged misconduct, she stated that she would continue to consume cannabis, culminating in her dismissal.
She argued that the policy unfairly distinguishes between alcohol and cannabis users, employs a discriminatory testing approach, discriminates against her religious use of cannabis, and invades her right to privacy.
Given that cannabis can remain in a person’s system for several months at a time, while alcohol can exit within a day, the employee argued that this permitted employees who tested positive for alcohol to return to work the next day, while cannabis users would have to spend seven days away from work.
The LAC rejected this line of reasoning due to the fact that employees are sent home for the period necessary to get ‘clean’ as required by the policy.
The LAC found that the zero-tolerance policy and the approach to testing for substances discriminated against the employee, with the consequence of infringing on her right to dignity.
While there may not have been any malice in the testing policy, the court determined that the randomised drug testing and the extent to which she had to stay at home to ‘get clean’ did discriminate against the employee because her consumption did not result in her being intoxicated at work, but nonetheless caused her to be treated as such.
The employee also found success in her submission that the policy invaded her right to privacy, as the employer failed to establish that an employee’s consumption of cannabis in her private capacity impaired her ability to perform within her role.
The LAC also rejected the employer’s assertion that its zero-tolerance policy sought to comply with the Occupational Health and Safety Act.
The court also found that when objectively considered, the actual effect of the employer’s policy was that an employee could not consume cannabis at all and applied the principle that overbroad, unwarranted, and unjustifiable invasions of the right to privacy are unconstitutional.
While zero-tolerance policies may be treated with greater scrutiny in light of Enever, the LAC also emphasised that its stance may not be applicable in different scenarios. Put differently, the extent to which a workplace policy might infringe the right to consume cannabis in private will depend on, among other issues:
- The nature of the employee’s role;
- The nature of the workplace; and
- The statutory requirements for safety.
The LAC found the employee’s dismissal to be automatically unfair based on unfair discrimination and awarded her 24 months’ remuneration as compensation.
The implications of cannabis policies in the workplace
Where a zero-tolerance stance has been adopted, employers should review the substance-use policies that are in place to determine whether a zero-tolerance approach is justifiable in the context of that workplace with due consideration to the nature of the operations, and the inherent requirements of the roles executed in that workplace.
Where it is determined that a zero-tolerance stance is not operationally justified, employers are still within their rights to regulate substance use by other means, including establishing cut-off limits.
Employers must also take heed of the fact that there is a growing need to have the appropriate substance-use policies and procedures in place that address the use of cannabis, among other substances, bearing in mind the likely increase in the private use of cannabis in light of the enactment of the previously mentioned Act.
Where employers fail to take a balanced approach in addressing cannabis in the workplace, their employees may successfully claim unfair discrimination, as was done in the Enever case, resulting in compensation being ordered by the LAC.
The views expressed in our weekly opinion piece do not necessarily reflect those of Farmer’s Weekly.
Webber Wentzel is a full service law firm with over 150 years of experience and industry knowledge. Nicolette van Vuuren is a partner in the firm’s Johannebsurg branch. Email her at [email protected]. Jamie Jacobs is an associate at Webber Wentzel’s Cape Town branch. Email her at [email protected].
