On 1 June 2022, the Labour Court in the case between Bernadette Enever and Barloworld Equipment found that an employee’s dismissal from Barloworld for the repetitive use of cannabis in her private space, does not constitute unfair discrimination or an automatically unfair dismissal.
Ms. Bernadette Enever (Employee) was employed by Barloworld Equipment since 2007 in the position of a category analyst, which was a desk job. According to her evidence, she had a history of severe constant migraine and anxiety. As a result, her general practitioner had prescribed a heavy dosage of medication for pain and anxiety that caused side effects.
After the decriminalisation of the personal consumption of cannabis in private spaces, the Employee gradually moved away from consuming pharmaceutical medication to using cannabis oil and smoking rolled cannabis as an alternative. The consumption of cannabis took place outside of working hours and in the privacy of the Employee’s home. She also consumed cannabis recreationally.
Barloworld has a zero-tolerance Alcohol and Substance Abuse Policy (Policy) due to the dangerous operations on its premises. The Employee was at all times aware of this policy. In terms of the Policy, employees are required to undergo medical tests in order to gain biometric access to Barloworld’s premises. If an employee tests positive for alcohol or a substance, they are declared unfit for work and directed to immediately leave the premises.
On 29 January 2020, the Employee was subjected to a medical test which was in the form of a urine test. The test came back positive for cannabis and she was asked to immediately leave the premises. At the time of the test, the Employee was not impaired or suspected of being impaired in the performance of her duties.
The Employee was placed on a seven-day ‘cleaning up process’ until she was cleared by testing negative; however, she continued to consume cannabis and, because of this, was denied access to Barloworld’s premises.
As a result of her continuous use of cannabis and breaching the Policy, the Employee was charged and dismissed pursuant to a disciplinary hearing where she was found guilty. Despite Barloworld seeking a final written warning as a sanction, the chairperson of the hearing imposed a sanction of dismissal as a final written warning would serve no purpose - the Employee refused to stop using cannabis therefore she would be in perpetual contravention of the policy.
After her dismissal, the Employee referred an automatically unfair dismissal and unfair discrimination on arbitrary grounds dispute to the Labour Court in terms of which she alleged that Barloworld had unfairly discriminated against her by applying the Policy and as a result, her dismissal was automatically unfair.
The Court’s findings
The Court ultimately found that the Employee had wrongly elected to pursue a case of unfair discrimination where discrimination was not present. The Employee’s dismissal arose from normal misconduct which is a matter that falls out of the jurisdiction of the court to decide on a basis of first instance. Further, the Employee’s wilful breach amounts to misconduct and a sanction of dismissal was correct under the circumstances. In reaching its finding, the Court reasoned, among others, as follows:
- There was no evidence from the Employee to suggest how Barloworld had treated her differently compared to other employees who had tested positive for a substance or cannabis.
- The Employee failed to lead persuasive evidence to substantiate her medical condition.
- The Employee’s recreational use of cannabis diminished her grounds to justify contravening the Policy.
- The Employee was aware of the Policy, which Barloworld applied consistently to all employees of all classes without exception. Therefore, the Policy does not differentiate among employees.
- The Court considered that cannabis is different when compared to alcohol; however, the Policy was applied consistently in respect of all employees.
- The Court was of the view that, in light of Barloworld’s dangerous environment, it is entitled to discipline and dismiss any employee who uses cannabis or is under its influence whilst at work.
- The Employee failed to have a proper appreciation of the importance of the strict application of the Policy and wilfully committed misconduct. This was highlighted by her unequivocal refusal to stop consuming cannabis.
This decision illustrates, among others, the importance of referring unfair dismissal disputes to the correct forum.
In this case, and in our view, the employer’s conduct was correctly found not to constitute an act of unfair discrimination. Any employee who breaches the Policy is not permitted access to the workplace and this is applied consistently. An unfair discrimination referral, more so on an arbitrary ground where the onus shifts onto the complainant, would have been difficult to substantiate. In addition, the Employee failed to lead any evidence regarding the grounds she alleged she was being discriminated on and how she was being discriminated against, despite the Judge having incorrectly found that the burden of proof was that of Barloworld.
The setting of rules and implementing of policies in the workplace remains the prerogative of employers. However, they have a duty to ensure that such rules are reasonable and defendable if challenged. When one considers a remark by the Judge that ‘a zero tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time’, employers will have to consider carefully how similar policies are worded and implemented going forward, more so in light of any hybrid working arrangements that may be in place. Seeking legal advice in this regard may be a viable option for employers.
Written by Sibusiso Dube, Partner, and Nuria Govender, Bowmans South Africa