Cannabis and the Employment Context – Update

Following an earlier opinion I provided on the Impact on the Constitutional Court’s Judgement legalising the use of Cannabis in the Workplace, there has now been sufficient time for the courts to determine the effect of that Judgement in the Workplace.

Read my earlier opinion here

The Labour Court pronounced on the issue in the matter of Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty), Ltd JS633/20 and JS926/20 (LC), where it was held that, despite the Employee’s aversion that the Company’s ban on Cannabis constituted unfair discrimination and that her dismissal was unfair on the basis of this as well as the fact that Cannabis had been legalised, the Employer had given her sufficient warning and opportunity and that her refusla to comply with the Employer’s Policy warranted dismissal.

The Labour Court also pronounced on the issue in the matter of NUMSA obo Nhlabathi and 1 other v PFG Building Glass (Pty) Ltd, JR1826/2020 (LC), where the Court determined that the mere fact that Cannabis is legalised in the private space does not protect employees from misconduct arising from testing positive for Cannabis in the Workplace.

The above cases made it clear that the Courts have adopted a similar approach with regards to the use of Cannabis as it has with regards the use of Alcohol in the Workplace and have established that an Employer does retain the right to determine its policies with regards to Zero Tolerance towards Intoxicating Substances, which include Cannabis.

It is therefore important that the Employer’s disciplinary code make provision for what is, and is not dismissable misconduct and, where appropriate, move the aspect of Cannabis from the category of “Illegal Drugs” to that of “Intoxicating Subsatnces” where applicable.

It is also important to note that a key aspect of the cases related to the application of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) and the Employer’s duty to provide a safe Workplace, similar to the approach taken in respect of Alcohol in the workplace.