Employers may find themselves in a difficult situation in distinguishing the fine line between unfairly discriminating against employees and upholding their reasonable code of conduct and policies within the workplace. In the past, it has been easy to discipline employees in terms of the so-called “zero tolerance” policies for substance and alcohol use and abuse.
Most of these policies are in place to ensure workplace safety, and their reliance is in terms of the inherent requirements for the specific job. Notably, the Employment Equity Act (EEA) does not define the phrase “inherent requirement for the job”. In The Impact of the Fourth Industrial Revolution on Workplace Law and Employment in South Africa (2021) 42 ILJ 16 by Lindani Nxumalo and Carol Nxumalo, it was stated that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.
The decriminalisation of the private use of cannabis seemingly continues to cause a rift among employers and employees because employers need to provide a safe working environment, and employees under the influence may pose a risk to that safe environment. Our previously published article, ‘Clearing the Haze’, assesses the Labour Appeal Court’s (LAC) judgment in the matter between Bernadette Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC, regarding cannabis and its effects on the workplace. The LAC concluded that the employee’s dismissal was automatically unfair due to discriminatory practices, finding the Alcohol and Substance Abuse Policy irrational to the extent that it prohibits office-based employees from consuming cannabis in their private time.
In Marasi v Petroleum Oil & Gas Corporation of SA (SOC) Ltd (2023) 44 ILJ 2261 (LC), the Labour Court (LC) had to determine whether the policy regarding alcohol and cannabis use had infringed on Mr Marasi’s (the Applicant’s) cultural rights, by scrutinising the inherent requirements of his job. The Applicant was employed as a Telecommunications Technician at PetroSA (the Respondent). This position involved executing the daily duties and responsibilities involved in high-risk areas, such as climbing up telephone poles to troubleshoot telephone connections and specific areas, such as the storage facilities, the tank room, and the heliport. The position also exposed the Applicant to highly confidential company information. It was common cause between the parties that the company’s Management Substance Abuse Workplace Policy (the Policy) was in line with the Mine Health and Safety Act (MHSA) to ensure the maintenance of a safe working environment and the health of all employees. It was also common cause that all employees agreed to be subjected to daily testing before entering the refineries. The Policy provided for cut-off levels relating to the use of intoxicating substances, including alcohol and 16 other substances.
The Applicant informed his employer in 2019 of his decision to enrol in a traditional healer training course. The school he had to attend was situated in Mossel Bay, and the employer assisted him in transferring to their Mossel Bay branch. In terms of the Applicant’s culture and whilst attending the school, he failed to disclose that he would be obligated to use cannabis. This resulted in the Applicant testing positive and over the cut-off limit for cannabis at the refinery, declaring him unfit for duty and his entrance to the refinery being revoked. The Applicant was sent home on annual leave and was requested to return to work when he tested below the cut-off limit. During the LC proceedings, the Applicant alleged that he was unfairly suspended and that the Policy did not accommodate his cultural observations in that the Respondent failed to consider and accommodate his cultural practices, specifically the use of cannabis during his training to become a traditional healer. The Applicant alleged that he was directly and indirectly discriminated against based on his religion and culture and that the workplace Policy disproportionately infringed upon his rights by belittling his culture and impairing his dignity in terms of his calling.
In their defence, the Respondent disputed that the Applicant was suspended (and that no form of disciplinary action was taken) and stated that it is an inherent job requirement for the employees working at the refinery to be fit for duty. Substance use impacts the ability of an individual to perform their work as is required, which means that their effectiveness and efficiency are misplaced. It was explicitly mentioned that the fact that private cannabis use was decriminalised does not change the effect that cannabis has on the body. The Respondent further stated during the proceedings that the Policy sets out rational requirements reasonably calculated to maintain necessary health and safety standards in the workplace and have no disproportionate impact on any community. The Respondent has never told the Applicant that he may not use cannabis; he is free to do so provided that he maintains the concentration of cannabis in his system under the cut-off level, which corresponds to a reasonable level of safety.
The Applicant’s claim of being unfairly suspended and discriminated against due to his cultural practices was unsuccessful. The Court also found that testing below the limit contained in the policy is an inherent requirement of the job and that it is reasonable. The Court also determined that Section 6(2)(b) of the EEA provides that it is not unfair to discriminate against employees who cannot satisfy the inherent requirements of the job. This judgment outlines the importance of rationale inherent requirements of the job when determining the reasonableness of workplace policies, unbiased implementations, and not differentiating between employees’ respective cultures. The tests conducted for substance abuse must fall within the permitted grounds of the EEA and justify the inherent requirement.
Article By Leme Stander
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)