There has been much jubilation and murmuring regarding the use of cannabis since the ground-breaking Constitutional Court judgement in the case of Minister of Justice and Correctional Services v Prince and Others. This case declared that the prohibition of the personal use, possession and cultivation of cannabis within private spaces was unconstitutional. The impact of this judgment has had and will have, an incredible effect on the legal and law enforcement spheres, as well as South African society. As the dust settles, the question remains, what impact will the judgment have on an employer’s ability to discipline employees who are found to be under the influence of cannabis whilst on duty?
In the case of Mthembu and Others v NCT Durban Wood Chips, the Commission for Conciliation, Mediation and Arbitration (“CCMA “) had to determine whether the dismissal of four employees who had been found to have been under the influence of cannabis during working hours was fair.
The nature of the employer’s business is in the wood and chip industry with operations of a ‘highly dangerous nature’ involving large machinery and dangerous vehicles in the plant. The employees occupied positions that exposed them to various forms of danger. As a result, the employer implemented a strict “zero tolerance” substance abuse policy. This prohibited any employee from working whilst under the influence of alcohol and/or drugs. It was common cause that the employees were informed of the substance abuse policy considering the health and safety considerations within the workplace.
The employer conducted a drug test and the employees tested positive for cannabis and were charged with being “under the influence of intoxicating substances whilst on duty”. A disciplinary hearing was held, and they were subsequently found guilty and dismissed. The employees challenged the fairness of their dismissal on the basis that they had not used the drug during working hours.
The matter was then brought to the CCMA and in determining whether the employees defence was legitimate, the commissioner considered the Prince case. The CCMA found that the applicants were all aware that the employee had a zero-tolerance view towards substance abuse and were aware of the possibility of dismissal if they tested positive. It was for them to make sure that when they smoke for private use it must not result in them reporting for work under the influence of cannabis. The CCMA further held that whilst the employer is unable to limit what the employees did privately, they were expected to abide by safety standards of the employer which are designed to protect the life and limb of not only the employees concerned but those who have come to carry out their duties understanding that their workplace is safe from any dangers. It is therefore the danger around the intoxication which now became an element for consideration and not the right to use intoxicating substances in private. The CCMA further applied an objective test as to whether there was a wilful disregard of the safety rules. The commissioner found that the employees had showed a wilful disregard for the safety rules of the employer and in doing so, were guilty of having committed misconduct. The commissioner found the dismissals of the employees to be substantively fair.
The CCMA was clearly of the view that although it is lawful to use cannabis in one’s private space it does not impede on an employer’s ability to test and discipline employees who are under the influence of cannabis in the workplace. It is commonly known that many employers adopt a workplace drug policy that includes random and routine drug testing for employees and although the effects of using marijuana may sometimes fade quickly (depending on each individual), the drug can be detected in the body for weeks and sometimes longer. Testing positive may not always be an adequate reason to dismiss an employee especially in circumstances where employees make use of the drug over the weekend therefore each case will have to be judged on its own merits. However, this case illustrates that even though the private use of cannabis has been decriminalised, employers can still discipline and dismiss employees who report for duty under the influence where they may pose a risk to themselves or others and where it is a wilful disregard to the rules. Employees who make use of cannabis have an equal responsibility to monitor their usage and ensure that they are not under the influence when reporting for duty. We can only anticipate that as this new area of law develops, more cases will help us define its application and integration into our private and work life.