UNDER THE INFLUENCE OF CANNABIS AT THE WORKPLACE – IMPACT OF THE PRINCE JUDGEMENT
Since the Constitutional Court handed down its judgement in Minister of Justice and Constitutional Development and Others v Prince And Others 2018 (6) SA 393 (CC) decriminalising the possession and cultivation of cannabis in private dwellings, the country has seen a rise in employees testing positive for being under the influence of cannabis at the workplace.
Although the personal consumption of cannabis by adults has been legalised, most employers still have in place policies prohibiting employees against being under the influence of intoxicating substances while at the workplace.
Following the Constitutional Court judgement, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) has seen an increase in referrals of disputes for unfair dismissals relating to employees who tested positive for cannabis whilst at the workplace and/or reporting for duty under the influence of cannabis.
In 2019 the CCMA dealt with the first dispute involving employees who were dismissed following private consumption of cannabis since the Constitutional Court judgement and having tested positive for being under the influence of intoxicating substances. In the case of Mthembu and others v NCT Durban Wood Chips  4 BALR 369 (CCMA), the employees challenged the substantive fairness of their dismissals. The employer operated large machinery and its workplace floor was also fraught with danger.
During the year 2016, the employer introduced a substance abuse policy in the workplace and the employees were informed about the substance abuse policy and signed the policy. The employer’s substance abuse policy is a zero-tolerance policy. The employer also held toolbox talks with the employees where they were informed of the employer’s position on substance abuse.
During the year 2017, the employees were tested on two occasions for drugs and they tested positive for cannabis. As a result of the second test, the employees were charged with being under the influence of intoxicating substances whilst on duty. A disciplinary hearing was held and the employees were found guilty and dismissed. The employees all provided a common explanation that they smoked cannabis during their private time.
The CCMA stated that where there is an inkling of intoxication caused by for an example alcohol which could impair an employee’s ability to work to the standard, care and skill required by an employer, then the employer is entitled to discipline where the intoxication turns into an offence. Given the facts of the aforementioned case it would be reasonable to expect the employees not to present themselves to work under the influence of cannabis because of the inherent dangers present at the workplace.
The CCMA further stated that the employees were all aware of the employer’s view towards substance abuse. The employees had to ensure that when they smoked cannabis during their private time it should not result in them reporting for work under the influence thereafter.
This, according to the CCMA was no different to consuming alcohol to such a degree the night before that an employee reports for duty under the influence the next day placing himself and other employees and the employer at risk. The CCMA took into consideration the employees’ extensive exposure to the employer’s substance abuse policy and found the dismissals of the employees to be substantively fair.
While the Mthembu case dealt with employers operating heavy machinery and the rules in place prohibiting the consumption of or reporting to work while under the influence of intoxicating substances at the employer’s workplace, the Constitutional Court judgment continues to have an impact on the employment relationship and workplaces with various operational set ups.
In the case of Rankeng v Signature Cosmetics and Fragrance (Pty) Ltd  10 BALR 1128 (CCMA), the CCMA dealt with a dispute in which an employee was dismissed for being under the influence of cannabis while at work. As above, the employee likewise challenged the substantive fairness of his dismissal.
The employee was employed as a picker by the employer. On 29 May 2019, the employee had reported late for duty and was requested to report to the office to explain why he had reported late. Upon his arrival at the office, the employer noticed that the employee’s eyes were red and watery. The employer then asked the employee if he had taken drugs and the employee admitted to having smoked a full “zol of Cannabis” early in the morning prior to reporting for duty. The employee was then asked to take a drug test through Lancet Laboratories and restricted to work in a particular area. The test from Lancet Laboratories came back positive for cannabis.
The employer’s disciplinary policy prohibited anyone from working while under the influence of alcohol or drugs and the employer was very strict on the disciplinary policy. The disciplinary code stated that management should not allow any employee to remain on its premises if it is suspected that the employee is under the influence of any drug. The disciplinary code further provided that whether or not an employee is fit to report for duty will be determined by management exercising reasonable discretion.
The employee was charged with being under the influence of cannabis at the workplace and was dismissed 11 June 2019 following a disciplinary hearing. Despite having admitted to the misconduct, the employee disputed that the offence warranted a dismissal.
During the arbitration the employee argued that the fact that he was allowed to continue working, demonstrated that he was not under the influence of any drug and stated that the employer was not able to prove that he was under the influence of cannabis as alleged. He further argued that the Lancet Laboratories report did not state he was under the influence of cannabis, but stated that he had tested positive for cannabis.
The issue before the CCMA was two-fold, firstly whether the employee was under the influence of cannabis, which he admitted to taking in the morning before reporting for duty and whether testing positive for cannabis was a dismissible offence in terms of the employer’s disciplinary policy.
In relation to the employer’s disciplinary code, the CCMA held that in this regard the reasonable discretion of management was that the employee was fit to continue working as they had restricted him to a particular area. The CCMA further held that the problem with a charge of being under the influence of drugs, i.e. cannabis, is that there has not been any scientific method of determining whether a person is under the influence of the drug to such an extent that there is an impairment in their performance.
The CCMA reiterated that employers may however rely on circumstantial evidence such as obvious signs of physical or mental impairment. However, it held that apart from its evidence of the employee’s red and watery eyes, the employer did not refer to any evidence of impairment which would suggest an inability on the part of the employee to perform tasks allocated to him. Furthermore, the employer’s management was empowered by its disciplinary code to send the employee home, but it chose to allow him to continue to work in a restricted area.
The CCMA held that this allowance was an acceptance that despite having tested positive for cannabis, which the employee had already admitted to, it had not affected his ability to perform his work. It also noted that it was irresponsible of the employee to take a substance that may have the ability to impair his mental or physical abilities.
The CCMA found that the dismissal was too harsh and not an appropriate sanction in the circumstances. The employer was ordered to reinstate the employee and that he be issued with a final written warning valid for a period of 12 months.
What is clear from the above case law is that although employers are unable to limit what their employees do in their private time, employees are expected and ought to abide by, inter alia, the employer’s disciplinary policy and code and safety standards.
It is further evident that following the Constitutional Court judgment there might be an increase in number of disputes referred to the CCMA for unfair dismissals relating to persons being under the influence of or having tested positive for cannabis. In light of the potentially increasing number of dismissals and disputes it is of the utmost importance that employers ensure that a proper disciplinary procedure is followed and consideration is given to, inter alia, the disciplinary code put in place, the dangers of having an employee under the influence at work and whether such influence is capable of having an impact on the ability to impair the employee’s mental or physical abilities in their performance prior to dismissing employees who are under the influence of or having tested positive for cannabis at the workplace.
It is highly recommended that employers ensure that they have an updated substance abuse policy in the workplace and the amendment is adequately explained to and signed by all employees. Furthermore, employers are encouraged to comply with its own policies, such as sending an employee home who appears to be under the influence of intoxicating substances should the policy require it and subject to the discretion of the management of the employer. However, such discretion must not seek to deviate from the provisions of the policy.
In circumstances where it may be necessary, employers are encouraged to ensure that they obtain consent from the employee before submitting to him and/or her to a drug and/or alcohol test. The employee’s consent may be obtained from a signed document, such as a consent form, and the provisions of the contract of employment.
Written by Thato Matloko FEOSA Official