“You can get that cannabis feeling anytime, anyplace except when at work”.
During September 2018, the Constitutional Court ruled that it is now legal to smoke and grow cannabis at home, in your own private space.
But does that mean you cannot be dismissed by your employer if you attend work under the influence of cannabis? Each case of course will have to be evaluated on its own merit but there is hope for those of you who enjoy the good weed from time to time in your own private space.
In a recent case, Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA), the arbitrator had to decide whether the dismissal of employees who tested positive for cannabis at work, was fair.
In this matter the employees were charged with being “under the influence of intoxicating substance whilst on duty”. The employer conducts business in the wood and chip industry which involves working with large machinery and extremely dangerous vehicles coming in and out of the premises throughout the day. The work floor is also fraught with danger.
In the middle of 2017, an employee was suspected of being under the influence of an illegal substance. He who subsequently tested positive for cannabis and he resigned after a hearing. Thereafter all the employees were tested for cannabis and the Applicants tested positive for cannabis, which they said they had smoked at their homes, in their own spare time and it did not affect their work at all.
The employer has in place a policy that the employer has a “zero tolerance” approach towards substance abuse. The employees were given this policy and it was explained to them and they signed this policy. Further and in addition to the policy, the employer had regular “toolbox” meetings where this policy was emphasized.
The arbitrator found that it was reasonable for the employer to have in place rules prohibiting the consumption of cannabis at work and reporting to work under the influence of cannabis. The arbitrator further found it incumbent upon the employees to act reasonably as they are aware of the need for the policy due to the inherent dangers present at work.
In relation to the sanction the arbitrator found that dismissal was fair and the appropriate sanction, as the employees wilfully disregarded the employer’s safety rule. The employees were aware of the zero tolerance policy and that testing positive to any substance would possibly amount to a dismissal.
As mentioned above, each case is judged on its own merits but this case shows that, even though the private use of cannabis has been decriminalised by our Constitutional Court, it is not an absolute right and employers can still discipline and dismiss employees in circumstances such as we they is an inherent requirement such as dangerous working environment which justifies a zero tolerance policy on substance abuse.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za
