The Respondent runs a business within the wood and chip industry. As such, the work conducted by the employees is dangerous as it involves heavy-duty vehicles and the operating of heavy machinery and managing large logs of wood weighing between thirty (30) to one hundred (100) kilograms, which may cause fatalities if not handled correctly. In addition to that, such dangerous machinery is being driven around the business premises throughout the entire day. Therefore safety rules are put in place to protect employees.
One of the safety rules includes the substance abuse policy, which has zero tolerance for using any substances at the workplace—the employee’s sign this policy upon commencement of employment with the Respondent (employer).
“The policy explicitly states that “possession, sale or use of illegal drugs is not consistent with the companies needs to operate safely and efficiently. Therefore, no employee of the company may use or possess unlawful drugs at any time”, irrespective of the employer reiterating the comprehension of the policy as well as the repercussions that are incurred should any employee test positive for the use of any substances at the workplace, several employees tested positive for the use of cannabis. They were dismissed due to the nature of their operations and daily movements.
All employees underwent a drug test for the first time, and they tested negative for the use of cannabis. The second time that the employees underwent a drug test, they tested positive as one of the employees was suspected of substance abuse, and some of the employees tested positive for being under the influence of cannabis. The test results were sent to a laboratory to have the samples re-tested, of which they also came back positive. Therefore the applicants were subjected to a disciplinary hearing where they were then found guilty due to the substantive reasons of being under the influence of cannabis.
The applicants did not agree with the sanction (summary dismissal). They decided to refer the matter to the CCMA for arbitration as they didn’t agree with the charge, they only agreed to smoking outside the workplace, out of working hours. However, they were still under the influence of the substance. The Commissioner was required to determine whether the dismissal of the employees was substantively fair.
The Commissioner, when deciding whether the dismissal was substantively fair, stated that the question was whether the applicants had contravened any rules or standard conduct concerning working conditions or workplace policies and if so, the CCMA was to determine whether that rule was, in fact, reasonable and valid, as well as whether the applicants were aware of the rule or were expected to have comprehended the rule.
In most instances within such industries, employees are required to acknowledge receipt of safety rules and regulations that are put in place to protect employees lives. In addition to that, the Commissioner was to determine if the rule had been applied consistently prior and if the sanction was reasonable for the contravention of the rule that had been put in place.
The Commissioner specified that considering the dangerous working environment, the policy implemented by the Respondent, which, inter alia, prohibits the consumption of cannabis at the workplace and/or attending work under the influence and that the applicants ought to have known the repercussions of their actions, as they signed the policy upon their commencement of employment.
The applicants’ showed a complete disregard of the employer’s safety rules and policy which is designed to protect the lives and limbs of employees and individuals who understand they will perform “heavy duties” in a safe environment.
The Commissioner had considered that the private use of cannabis was decriminalised by the Constitutional Court, which, however, doesn’t allow employees to attend work under the influence of cannabis. An employer cannot limit what employees do in their spare time. However, they are obligated to abide by the safety standards implicated as it’s for their protection, the dismissal was substantively fair.
Article by: Trevor Nene
Legal Assistant – Durban