The possession and use of dagga for private purposes may no longer be a criminal offence, but to what extent may employers control employees’ habits in the workplace? And may an employer adopt a ‘zero tolerance’ approach?
Decriminalisation of the use of dagga for private purposes
The 2018 decision of the Constitutional Court (CC) in Minister of Justice & Others v Prince & Others to decriminalise the cultivation, possession and use of dagga for private purposes created considerable uncertainty for employers about whether employees are now allowed to use marijuana (dagga) during working hours; whether possession thereof on the employer’s premises is permitted; and whether an employer may still take action against an employee who is under the influence of dagga or has dagga in his or her system.
To assist employers in navigating these tricky issues, we proposed some guidelines for employers on the handling of cases involving the use of dagga, where this impacts an employee’s ability to work (see earlier post at https://www.labourwise.co.za/labour-articles/dagga_in_the_workplace).
Using dagga allegedly for medical reasons
In a recent decision of the Labour Court [Bernadette Enever and Barloworld Equipment, a Division of Barloworld SA (Pty) Ltd] the Court had to decide whether the dismissal of an employee who allegedly used dagga for medical reasons amounted to (a) unfair discrimination in terms of the Employment Equity Act (EEA); and (b) an automatically unfair dismissal under the Labour Relations Act (LRA). The following facts are pertinent:
a. The employee had more than 13 years of service with a clean disciplinary record at the time of her dismissal.
b. While safety was of paramount concern for the employer, given the nature of the equipment and machinery it operates, the employee’s job did not entail contact with, or operation of dangerous equipment or machinery.
c. The employer had a strict alcohol and substance policy in place, of which the employee was aware. It requires employees to undergo medical tests to gain biometric access to the employer’s premises.
d. The employee – who was aware of the policy – failed several consecutive urine tests as a result of the presence of dagga in her system.
e. She was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of dagga could be said to be a risk to her own safety or that of her fellow employees. She was also not in possession or suspected of being in possession of the dagga whilst at work.
f. While she alleged that she used dagga for medical purposes, she only raised this as a defence during her disciplinary hearing but did not provide any proof to that effect.
g. It was clear from her testimony at her disciplinary hearing that she did not intend to stop using dagga.
h. There was no indication that the employer acted inconsistently regarding the application of the policy.
The Court’s decision
The Court found that, given these circumstances, the employee had failed to show that she had been discriminated against on medical or any other arbitrary grounds. Only if she had been able to prove that she had been discriminated against as provided for in section 6(1) of the EEA would the employer have been called upon to justify the dismissal. Her dismissal, therefore, had to be treated as an ordinary dismissal for misconduct. Because no unfair discrimination had been established, the Court found it unnecessary to consider whether her dismissal was unfair in terms of section 187(1)(f) of the LRA.
If indeed she had a medical condition for which dagga was prescribed, it was incumbent upon the employee to volunteer her medical condition, especially in view of the fact that it was rather obvious that consumption of the dagga would ultimately and most definitely lead to a positive test and a contravention of the policy.
Interestingly, the Court also found that the chairperson could not be faulted for imposing dismissal, although the initiator at the employee’s hearing had asked for a final written warning to be issued. This was because her she had delivered several positive test results and clearly indicated that she would continue using dagga for her alleged medical condition.
Workplace rules prohibiting dagga-related transgressions
Nothing in this case, or the earlier decision of the CC, prevents an employer from implementing rules that regulate the possession and use of dagga at the workplace, including a total prohibition on its use and possession. In fact, the General Safety Regulation 2A of the Occupational Health and Safety Act commands employers not to allow any person, who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Dagga is an intoxicating substance.
The fact that the environment in which an employee works is not ‘dangerous’ makes no difference to the legitimacy of such rules. It may, however, constitute an aggravating factor; e.g. if an employee who operates heavy or dangerous machinery is found to be under the influence of an intoxicating substance.
Where an employee is tested to establish the possible presence of an intoxicating substance, such test must comply with s7 of the Employment Equity Act. The employer must also ensure that testing is voluntary and confidential. However, the employer may introduce a condition of employment that makes it obligatory to undergo regular medical testing if employment conditions justify this.
Does the employee have to be ‘under the influence’ before action can be taken?
The active compound in marijuana‚ tetrahydrocannabinol (THC)‚ apparently can linger in a person’s system for weeks and even months for heavy users – far longer than is the case with alcohol. This means that an employee who legally used dagga on a Friday evening is likely to show traces of the drug if tested at work on a Monday, but will no longer be under the influence, and is unlikely to be impaired. In other words, even if a person is no longer ‘high’‚ he or she can still test positive for the substance. In our previous instalment, we suggested that the mere presence of dagga will not be sufficient to prove that a person is under its influence.
However, the Court in the present matter held that proof of impairment is not required and that it can automatically be assumed that one is under the influence of dagga due to its intoxicating nature. We believe that this conclusion is incorrect. Thus, if an employer alleges that an employee is under the influence of any intoxicating substance, this will need to be proved. Failing such proof, the employer can still charge an employee for the presence of an intoxicating substance in her or his system. Depending on the repeated nature of the transgression, or the nature of the employer’s activities (dangerous or high), this can also lead to dismissal.
What if the employee uses dagga for medical reasons?
It is clear from the judgement of the Court that it was incumbent on the employee to seek assistance from her employer as soon as possible after commencing with the consumption of dagga. Instead, she “chose her own ways, out of her volition, to consume dagga despite full knowledge that she will repetitively test positive and most importantly, in breach of the … policy.” Although not clear from the judgement, the employer would in that case have had to make an attempt to accommodate the employee, failing which it should have been managed as a matter of incapacity.
May employers adopt a ‘zero tolerance’ approach to employees having dagga in their system?
The Court did not address this question properly, as it only had to decide on the issues of discrimination and automatically unfair dismissal. According to the Court, this was a normal misconduct case which fell outside its purview. If the matter had been heard in the Commission for Conciliation, Mediation and Arbitration (CCMA), the question about the validity and fairness of the policy/rule is likely to have been canvassed. It is arguable that a blanket approach of prohibiting the mere presence of dagga in an employee’s system would be unfair; e.g. extending the rule to employees whose work activities pose no threat to the health and safety of any person.
While the judgement brings more clarity on some of the questions we raised in our earlier post, many questions remain unanswered. Employers would be well advised to seek clarity with regard to their alcohol and substance abuse policies, as some adaptations may be required.
Barney Jordaan and Jan Truter for www.labourwise.co.za