Delving into the weeds – Cannabis at work

21 Feb 2023

The 2018 Constitutional Court case of Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening) (“Prince judgment”) was at the forefront of the decriminalisation of the private use, possession and cultivation of cannabis. Subsequently, employees have tried to rely on this judgment as a defence for their use of cannabis when faced with disciplinary action at the workplace for using and/or testing positive for cannabis use. Our courts have now been tasked with determining the position regarding the use of cannabis at the workplace in light of the Prince judgment.

Though the use of cannabis has been decriminalised for private use, employers will not necessarily let employees off the hook if employees test positive for cannabis use while on duty. A case in point comes in the form of a recent Labour Court decision of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd. There, two employees, who were manufacturing operators, tested positive for using cannabis while on duty and they were charged accordingly. The employees were dismissed following disciplinary proceedings.

Both employees referred unfair dismissal disputes to the CCMA alleging that their dismissals had been substantively unfair. The employees relied heavily on the Prince judgement to try and support an argument that the marijuana was not a drug, but a herb. They also contended that their employer did not have a rule or policy indicating that their conduct was prohibited.

The employer held a view to the contrary. The employer relied on its zero-tolerance policy regarding cannabis use, and the provisions of the Occupational Health and Safety Act in terms of which, the employer argued, it had a duty to provide and maintain a safe working environment. As such, the employer could not tolerate, and had a policy in place prohibiting, employees being under the influence of alcohol or drugs in its workplace, which is of a dangerous nature.

The CCMA Commissioner found that the employees’ dismissals were substantively fair, ultimately siding with the employer’s case.

The employees took the arbitration award on review to the Labour Court which upheld the award. The Labour Court emphasised that the Prince judgment does not act as a shield for employees to defend themselves against disciplinary action for testing positive for cannabis use, especially where such employees act in contravention of company policy. This is even more so where policies exist as a means of ensuring a safe work environment, as was the case here. The employees in this matter were found to be aware of the employer’s zero-tolerance policy, which policy was justified given the hazardous nature of the working environment. As such, dismissal was found to the appropriate sanction.

This case is a reminder that even though there is no general prohibition on the private use of cannabis in light of the Prince judgment, employees should be warned of the possibility of dismissal should they test positive for cannabis use while at the workplace, particularly where an employer has a zero-tolerance policy towards cannabis use. This risk applies even in circumstances where employees do not use cannabis at work, but test positive as a result of their private use.

Furthermore, employers are reminded that they are not prohibited from implementing zero-tolerance policies regarding drug use, especially where occupational health and safety rules dictate that they be implemented.

See also:

• Keep track on the future of the country’s cannabis industry
• Does smoking cannabis prior to commencing work constitute a dismissible offence?
• The ongoing development of South African law related to cannabis
• The Cannabis judgment – Implications for society and the workplace

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)