The Labour Appeal Court (LAC) recently handed down a judgment which underscores the importance for companies to ensure that their zero-tolerance policies relating to the use of cannabis are operationally appropriate, necessary, and reasonable to withstand scrutiny.

In 2018, the Constitutional Court decriminalised the private use of cannabis in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening)[1]. Many employers have policies that govern substance use which were amended to include cannabis following the Prince judgment. The challenge which has since arisen is whether these policies, particularly where they are fully intolerant of cannabis consumption, are justifiable. 

In Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, the LAC considered four issues raised by the employee, namely whether:

• the employer differentiated between her and other employees;
• there was a causal link between her dismissal and her consumption of cannabis;
• the employer's policies were unfairly discriminatory; and
• she suffered impairment to her dignity as a result of the policies.

The employee worked as an analyst at Barloworld, which operates in the equipment production sector. The employee's role was limited to desk work and required no interaction with any production lines. Barloworld's applicable policies prohibited the possession and consumption of alcohol and cannabis in the workplace, and mandated routine or random drug testing. If an employee tested positive for a substance, they were required to remain at home for 7 days. Upon completing this period, they must test negative on another drug test before being allowed to return to work. 

The employee was a regular cannabis user and tested positive for cannabis following a random drug test. She was then sent home in accordance with the policy. The employee tested positive on a further four occasions and during the disciplinary enquiry into her alleged misconduct, the employee stated that she would continue to consume cannabis, culminating in her dismissal. She argued that the policy unfairly distinguishes between alcohol and cannabis users, employs a discriminatory testing approach, discriminates against her religious use of cannabis, and invades her right to privacy.

Given that cannabis can remain in a person's system for several months at a time, while alcohol can exit within a day, the employee argued that this permitted employees who tested positive for alcohol to return to work the next day whilst cannabis users would have to spend 7 days away from work. The LAC rejected this line of reasoning due to the fact that employees are sent home for the extent necessary to get "clean" as required by the policy. The LAC found that the zero-tolerance policy and the approach to testing for substances discriminated against the employee, with the consequence of infringing on her right to dignity. 

The employee also found success in her submission that the policy invaded her right to privacy, as the employer failed to establish that an employee's consumption of cannabis in her private capacity impaired her ability to perform within her role. The LAC also rejected the employer's assertion that its zero-tolerance policy sought to comply with the Occupational Health and Safety Act. The LAC found that when objectively considered, the actual effect of the employer's policy was that an employee cannot consume cannabis at all and applied the principle that overbroad, unwarranted, and unjustifiable invasions of the right to privacy are unconstitutional.  

Whilst zero-tolerance policies may be treated with greater scrutiny considering Enever, the LAC also emphasised that its stance may not be applicable in different scenarios. Put differently, the extent to which a workplace policy might infringe the right to consume cannabis in private will depend on, amongst other issues:

• the nature of the employee's role; 
• the nature of the workplace; and
• the statutory requirements for safety. 

The LAC found the dismissal to be automatically unfair based on unfair discrimination and awarded the employee 24 months’ remuneration as compensation.

An alternative to zero-tolerance policies is to establish permitted cut-off levels of substances. This approach was applied by the employer in Marasi v Petroleum Oil and Gas Corporation of South Africa (Marasi). The Labour Court in Marasi found that a policy which places a limit on the permissible amount of a substance in the body is not unconstitutional, especially in light of the employee's proximity to dangerous equipment on a daily basis. In this regard, there is a distinction between being intoxicated and having traces of certain substances in the body. 

If employers elect to shift from zero-tolerance to acceptable cut-off limits in light of the Enever judgment, the degree to which substances affect different people may come to the fore. In Tanker Services (Pty) Ltd v Magudulela (Tanker Services),[2] the LAC stated that intoxication is a matter of degree, and that an employee would be considered intoxicated if it could be shown that their consumption of the substance renders them incapable of performing a task typical to their job without potentially compromising their safety and the safety of other persons in their workplace. 

Where a zero-tolerance stance has been adopted, employers should review the substance use policies in place to determine whether a zero-tolerance approach is justifiable in the context of that workplace with due consideration to the nature of the operations, and the inherent requirements of the roles executed in that workplace. Where it is determined that a zero-tolerance stance is not operationally justified, employers are still within their rights to regulate substance use by other means, including establishing cut-off limits.

Written by Mehnaaz Bux, Partner, Eugene Chaphi, Trainee Attorney & Neo Conference Moerane, Candidate Attorney from Webber Wentzel