People may no longer be prosecuted for cultivating, possessing and using small amounts of Cannabis for private purposes. But what are the consequences for the workplace?
With reference to the latest Constitutional Court development where it was ruled that the private cultivation, possession and consumption of cannabis is legal, in the matter of Minister of Justice and Constitutional Development and Others v Prince & Others  ZACC 30; employers have been required to consider how best to deal with the effects of personal cannabis use in the workplace.
The legitimate use of cannabis at home does not necessarily mean employees are entitled to attend the workplace under the influence or to render services with their ability impaired.
The implications of the personal use of cannabis and its impact on the workplace were recently considered by the Commission for Conciliation, Mediation and Arbitration (CCMA) in the case of Mthembu & others v NCT Durban Wood Chips  4 BALR 369.
The CCMA, per Commissioner Oakes, ruled that, despite the Constitutional court declaring the private use of cannabis legal, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours. The employer’s operations in casu indicated that such a prohibition was reasonable, and the employees knew that they were not allowed to report for work under the influence of cannabis.
A brief background of the case; the employer conducts business in the wood and chip industry, involving large machinery and extremely dangerous vehicles and large logs weighing between 30kg’s and 100kg’s consequently, safety rules are in place to protect the employees and the employer.
The applicants were dismissed because they were found guilty of being “under the influence of intoxicating substances while on duty’, something that created a risk for everyone at the company.
In determining whether the dismissal was fair, the CCMA was required to consider Schedule 8, Item 7 of the Labour Relations Act, no. 66 of 1995:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
It was common cause that the employer had in place a substance abuse policy which stated that the employer adopted a ‘zero-tolerance’ approach towards substance abuse. Further, it was also common cause that the employees signed the substance abuse policy.
The pivotal questions here was whether the rule that prohibits working under the influence of either alcohol or cannabis was reasonable and valid and whether the rule applied to the facts of the case.
The CCMA found that the rule was consistent with the legality around other intoxicating substances, such as alcohol. Like alcohol, where there is an inkling that such intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer was entitled to discipline where the intoxication translated into an offence.
Because of the high degree of safety required of companies when heavy machinery and generally dangerous equipment is used, it is reasonable for employers to have rules in place prohibiting the consumption of intoxicating substances at the workplace or reporting to work under the influence of such substances.
Given the factual matrix of the present matter, it would be reasonable to expect the applicants not to present themselves to work under the influence of cannabis because of the inherent dangers present at the workplace.
In light of the above-mentioned facts the arbitrator found that due to the dangerous nature of the employer’s workplace and the knowledge of the employer’s zero-tolerance policy on substance abuse, the dismissal was the appropriate sanction.
Following the above case law, employers should take the following into consideration when implementing rules or policies aimed at addressing specifically the use of cannabis and its effects in the workplace:
- consent to testing for cannabis;
- the manner of testing;
- the nature of the employer’s business;
- the employee’s duties;
- the circumstances in which the offence was committed;
- the observable extent of the impairment;
- and the employee’s history of cannabis or other drug-related offences at work.
Whatever test an employer decides to apply, it must comply with Section 7 of the Employment Equity Act, No 55 of 1998. In terms of Section 7, the test must be permitted or required by law or must be justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.
Employers should thus be careful to distinguish between misconduct and incapacity when it comes to cannabis use. Where an employee can show an addiction to cannabis, the employer will have to consider whether counselling and rehabilitation may be appropriate steps. This would require that the employer provide assistance to the employee in terms of item 10(3) of the Code of Good Practice: Dismissals.
Article by: Arlene Jacobs
Dispute Resolution Official – Bloemfontein