When dismissal for a positive cannabis test is fair

THE Constitutional Court may have recently declared the private use of cannabis legal, but what is the impact of this on the workplace? How does the private consumption of cannabis and alcohol for that matter, impact on an employer’s rights?
Despite the Constitutional Court ruling, the Commission for Conciliation, Mediation and Arbitration (CCMA) held in Mthembu & others v NCT Durban Wood Chips (Case number KNDB4091-18), that employers are nonetheless entitled to discipline employees who are under the influence of cannabis during working hours.
In this case, the employer conducted business in the wood and chip industry, which involved the use of large machinery and “extremely dangerous vehicles coming in and out of the premises throughout the day”. It was clear that safety was of paramount importance to the employer, given the nature of the working environment. This was all the more the case given that large timber logs, weighing between 30kg and 100kg, were handled in the workplace, further emphasising the focus on safety.
There were 60 to 80 heavy-duty truck deliveries into the mill every day.
Evidence was led that the employees were informed of, and had signed, the company’s substance abuse policy in 2016. In addition, frequent tool-box talks had reiterated the employer’s stance on substance abuse.

In mid-2017, an employee had resigned during his disciplinary hearing after his urine sample had tested positive for cannabis. Further cannabis tests conducted at a laboratory confirmed that four more employees had tested positive.
The employer testified that heavy-duty machinery is used at the workplace, including a clipper which spins at 5 000 revolutions, and takes about 10 to 15 minutes to stop in case of an emergency. The ongoing delivery of timber into the mill by locomotive posed further ongoing danger.
The employees were employed in dangerous positions. One of them worked as a weighbridge clerk, receiving trucks that where weighed, after he inspected them and tested the timber they were delivering.

A second employee sharpened and polished 1m-long knives, three at a time. A third employee was a log deck assistant, whose job it was to ensure that logs landed on the log deck without being obstructed and who manually cleared any log obstruction.
The employees challenged the substantive fairness of their dismissals, uniformly claiming that they smoked cannabis in their private time.
The arbitrator noted that the Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development had “pronounced that legislation criminalising the private use of cannabis is inconsistent with the Constitution. However, turning to the workplace, the arbitrator noted that ‘like alcohol where there is an inkling that intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence.’”
The arbitration award goes on to recognise and confirm that “it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances” in workplaces with dangerous heavy machinery and equipment.
Quite clearly, workplaces of this nature pose a high degree of danger.
Tellingly, the employees, according to the arbitrator, “showed no real remorse”.
The dismissals were held to have been substantively fair and importantly, that “It was for (the employees) to make sure that when they smoke for private use it must not result in them reporting to work under the influence thereof. This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day, placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”, which could be pursued by the Department of Labour, for example.

The dangerous nature of the working environment was an important factor in this award. In an environment that is less dangerous, or not at all dangerous, such as an office environment, a sanction of dismissal would have been harder to defend. In such cases, a final written warning would more likely be appropriate in the eyes of the CCMA or a bargaining council.
This case also highlights the importance of addressing substance abuse by way of a company policy. It follows that a company’s disciplinary codes should also include substance abuse and intoxication, with recommended sanctions if an employee is found guilty in such cases.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. www.tonyhealy.co.za. Call 0861 115 375 or email [email protected]

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