Introduction:
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 (Prince) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC), the cultivation and possession of cannabis for personal use by adults has been legalized.1 Despite this position, companies are not prevented by law to have ‘zero-tolerance’ policies against the use and/or testing positive for alcohol and drugs at the workplace. Part of the reason for this stems from the purpose of The Occupational Health and Safety Act 85 of 1993. In essence the Act caters for the protection of employees from hazards to health and safety whilst on duty.2 The legalization of cannabis therefore does not necessarily have a bearing effect on ‘zero-tolerance’ policies in the South African workplace.3
It would further be appropriate to highlight the difficulties faced by employers concerning cannabis and the workplace, especially if the nature of an employees work includes handling dangerous equipment or substances. Where a ‘zero-tolerance’ policy is not properly implemented or adhered to, employers could find themselves facing severe consequences4 for not complying with occupational health and safety regulations.5
The Labour Appeal Court – Barloworld Judgment & comments:
In the case of Bernadette Enever vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC (Barloworld), Ms Enever was dismissed for testing positive for cannabis whilst on duty, and on several occasions.6 She used cannabis for medical purposes prescribed to her by her general practitioner for pain, sleep and anxiety.7 She was in terms of the company policy required to undergo medical testing for cannabis by means of a urine test.8 As she was a regular user of cannabis who on several accounts tested positive, she was sent home and was required to return after seven days. This same process was repeated several times.9
She further did not want to discontinue using cannabis and strongly asserted her right in this regard.10 A further argument raised by her was that she not impaired at the time she was tested, nor was her work or duties negatively affected, and neither did the nature of her work include handling dangerous equipment.11
In the Labour Court, four questions where raised, and they include:
- Whether there was a distinction between the appellant and other employees in relation to the workplace policy;
- Whether there was a causal nexus between the positive test and the dismissal, thus resulting in discrimination against her based on several factors including potential arbitrary grounds;
- Whether the policies were inherently unfair, unreasonable and discriminated against her right to dignity;
- Whether the company negatively affected the appellant’s dignity by means of an unfair and degrading approach in the manner the company imposed and approached the sanction.12
Ms Enever was unfortunately unsuccessful in challenging her employer’s stance in the Labour Court. It was held that she was reasonably dismissed for misconduct because she willingly breached the company’s ‘zero-tolerance’ policy.13
The Labour Appeal Court however had a different outcome. Section 6(1) of The Employment Equity Act 55 of 1998,14 protects employees from unfair discrimination in the working environment. In addition to this, there is a test that can be applied for discrimination as brought forth by Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 30015 (Harsken Judgment), and this test has three components, namely the following:
- To determine whether a workplace policy differentiates between employees;
- To determine whether the differentiation discriminates against an employee and their rights;
- To determine whether this discrimination would be unfair.16
In the Labour Appeal Court, it was held that the employer’s ‘zero-tolerance’ policy violated the employee’s right to privacy and that it was irrational as this policy also was discriminatory. As a result the court was of the view that Ms Evever’s dismissal was automatically unfair as in accordance with section 187(1)(f) of the Labour Relations Act.17
An evaluation of workplace policies with reference to Barloworld and other case law:
Where an individual tests positive for cannabis but is no longer impaired raises a large debate as to the fairness of workplace ‘zero-tolerance’ policies. Fairness may further be an issue where a workplace policy provides that an employee may be denied access to the workplace based on a positive cannabis test in itself. The reason for this is that there is a differentiation between cannabis and alcohol users.18 A further argument that could be raised is that a ‘zero-tolerance’ policy infringes upon an individual’s right to privacy19 as one would have to either not use the substance at all or substantially reduce the use thereof in order to prevent a positive test at work.
With regards to the cannabis and the workplace, employers could further apply a circumstantial evidence based approach to determine if an individual is in fact impaired. This approach on face value by taking into account behavioural or physical changes can confirm if the use cannabis in fact resulted in decreased work performance or a hazard to other employees.20 On the other hand it would not be feasible for companies to lower the bar so to speak. The reason for ‘zero-tolerance’ policies in the workplace are to cater for a professional and safe working environment, as this is also in the general interests of the employment sector. Whilst an employer cannot disregard an employee’s right to privacy when it comes to ‘zero-tolerance’ workplace policies, such policies are nonetheless standard and in line what the Occupational Health and Safety Act provides.21 When looked at from this angle, one could be of the view that this is a reasonable limitation on an employee’s right to use cannabis in private. The Labour Appeal Court in Barloworld however did not deem this to be a justifiable reason.22 This Court looked at the right to privacy and how it linked with the right to dignity, and highlighted that an invasion of the right to privacy directly or indirectly may affect an individual’s right to dignity.23
In many instances workplace policies are applied in the same manner when it comes to both alcohol and the consumption of other drugs, and as long as this is applied consistently and equally, it cannot be said that such a policy is unfair. The approach for discipline and the manner a policy is set up or enforced will however need proper consideration when deciding upon the appropriate sanction as punishment.
Employers would also have to apply fairness in the manner testing is conducted. As highlighted by the Barloworld case, the use of a blood test by itself without physical proof of impairment can be seen as a direct infringement upon an employee’s right to privacy and dignity when an employee is dismissed or punished as a result.24 In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others[2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC)25, it was stated that the foundation of a dismissal stems from the fairness thereof, and a where a ‘zero-tolerance’ policy is applied, the reasonableness thereof should be considered.
The outcome of the Labour Appeal Court’s judgment in Barloworld, is a rather worrying outcome for employers. What we can see from this judgment is that the issue in question is discrimination versus an employer’s right to implement discipline. Furthermore if a ‘zero-tolerance’ policy is to be adopted, impairment or intoxication needs to be evident, unless there is a reasonable ground that such a policy ought to be applied when taking into account the nature of an employee’s work.26 As per the Barloword case, and in line with what section 6(1) of the Employment Equity Act27 provides, employers need to pay careful consideration in formulating such policies and how they are applied.
1 [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC).
2 Act 85 of 1993, at the preamble.
3 Bernadette Enver vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC, at paragraph 8.
4 Smuts, ‘The South African Law: What should you know’, (2013), First Edition, Tafelberg Publishers, at page 214.
5 Act 85 of 1993.
6 (JA86/22) [2024] LAC, at paragraph 2 & 10.
7 (JA86/22) [2024] LAC, at paragraph 9.
8 (JA86/22) [2024] LAC, at paragraph 10.
9 (JA86/22) [2024] LAC, at paragraph 10.
10 (JA86/22) [2024] LAC, at paragraph 12.
11 (JA86/22) [2024] LAC, at paragraph 12.
12 (JA86/22) [2024] LAC, at paragraph 14.
13 (JA86/22) [2024] LAC, at paragraph 19.
14 Act 55 of 1998.
15 [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300.
16 [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300, at para 26.
17 Act 66 of 1995.
18 (JA86/22) [2024] LAC, at paragraph 11.
19 Section 14 (a) – (d) of The Constitution of the Republic of South Africa 1996.
20 Grogan, Dismissal, (2017), Third Edition, Juta, 277.
21 Act 85 of 1993,
22 (JA86/22) [2024] LAC, at paragraph 35.
23 (JA86/22) [2024] LAC, at paragraph 37.
24 (JA86/22) [2024] LAC, at paragraph 38.
25 [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC).
26 S Machado & S Dube, ‘South Africa: LAC finds that an employee who was dismissed for recreational cannabis use at home was unfairly discriminated against’, bowmanslaw.com, 25 April 2024.
27 Act 55 of 1998.