In Minister of Justice and Constitutional Development v Prince (Clarke and Others Intervening); NDPP v Rubin; NDPP v Acton 2018 (10) BCLR 1220 (CC) (Prince), the Constitutional Court decriminalised the cultivation, possession and use of cannabis by adults in the privacy of their homes. 

The effect of the Prince judgment on maintaining workplace safety and discipline, recently came before the Labour Appeal Court in the case of Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (2024) 45 ILJ 1554 (LAC) where the Labour Appeal Court considered whether the dismissal of Barloworld employee, Ms Enever, was discriminatory and automatically unfair in terms of section 187(1)(f) of the Labour Relations Act, 1995. 

As a result of Barloworld’s zero-tolerance policy on the possession and consumption of alcohol and drugs in the workplace, Enever, a category analysist at Barloworld, was dismissed after testing positive for cannabis during a routine workplace medical test. 

Enever referred an unfair dismissal dispute to the Labour Court.  She explained that she began using cannabis after the Prince judgment as a substitute for prescribed anxiety medication.  She argued that her dismissal was unfair because her cannabis use, which occurred in the privacy of her home and outside working hours, was for medicinal purposes and did not affect her ability to perform her duties or pose a safety risk in the workplace.

Enever also claimed that Barloworld’s zero-tolerance policy, which underpinned her dismissal, was unfair and discriminatory because it differentiated between cannabis and alcohol users.

The Labour Court found that Enever’s claim of medicinal cannabis use did not exempt her from the zero-tolerance policy, particularly due to a lack of medical evidence presented to support her claim. The Labour Court also found that Barloworld’s zero-tolerance policy served a legitimate safety purpose and was rationally applied, and that the Prince judgment did not alter the consequences of testing positive for cannabis in the workplace, even if the employee was no longer intoxicated or “stoned” from the substance at the time of reporting to work.

On appeal, the Labour Appeal Court considered whether Barloworld’s Zero-Tolerance Policy amounted to unfair discrimination by infringing Enever’s right to privacy (specifically the right to use cannabis in the privacy of her own home) and whether this impaired her human dignity. 

The Labour Appeal Court considered that cannabis stays in the bloodstream for longer than is the case with alcohol which dissipates quickly from the bloodstream, and that there is therefore less of a correlation between testing positive for cannabis and intoxication, unlike alcohol. 

The Court highlighted the importance of the Prince judgment and its implications on the right to privacy, stating that an employer must consider an employee’s right to privacy when implementing its policies.  The Court stated further that intoxication is a matter of degree and  testing positive for cannabis use does not automatically justify dismissal nor does it indicate intoxication or impairment. 

The Court confirmed that treating someone who tests positive for cannabis as someone who is intoxicated when in fact they were not, is unfair discrimination. This approach unfairly  singles out cannabis users compared to alcohol users for their off-duty conduct even when the conduct poses no risk for the employer.  The Court stated that this treatment is overbroad, unwarranted and is an unjustified invasion of the right to privacy.

It was relevant that Enever did not operate heavy or dangerous machinery so there was no rational link between Enever’s personal cannabis use in the privacy of her home and the maintenance of safety in the workplace.  The Court stated that even though it may be easier for Barloworld to enforce the zero-tolerance policy uniformly, a blanket approach is not acceptable and Barloworld has the responsibility to ensure that its zero-tolerance policy is enforced based on the individual employee’s job requirements and the facts of each case.

The Labour Appeal Court found that Enever’s dismissal was automatically unfair due to unfair discrimination. 

The Court awarded Enever maximum compensation equivalent to 24 months’ remuneration because Barloworld maintained a zero-tolerance approach towards cannabis use instead of undertaking a meaningful consideration to its policies and approach towards workplace safety, specifically after the Constitutional Court’s decision in Prince.  

This ruling requires employers to carefully review and consider their workplace alcohol and drug policies, specifically in relation to cannabis.  Employers should ensure that their policies are not overbroad, and that they are applied fairly and proportionately based on an assessment of safety risks associated with specific job and workplace safety risks.  

Written by Owethu Mbambo, Partner, Labour, Employment and Human Rights; Kedibone Seroka, Associate Designate, Labour Employment and Human Rights; and Julia Tosi, Candidate Attorney, Labour Employment and Human Rights; Fasken