In a recent judgment handed down in the matter of Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS633/20 and JS926/20) LC, the Labour Court upheld the dismissal of an employee for the breach of the employer’s zero-tolerance Alcohol and Substance Abuse policy whereby the employee repeatedly tested positive for the cannabis drug. The employee claimed that her dismissal was based on unfair discrimination due to her spirituality, conscience and belief and further claimed that her dismissal was automatically unfair on arbitrary grounds. The employee sought dual relief for the alleged unfair discrimination under the provisions of Section 187(1)(f) of the Labour Relations Act, 1995 and Section 6(1) of the Employment Equity Act, 1998. The Labour Court determined that the dismissal did not amount to unfair discrimination nor an automatically unfair dismissal.

The employee was employed in an office position of a company which specialises in providing the mining and civil engineering industries with earthmoving equipment. This field of business entails a lot of health and safety measurements, and for any employee to access the premises, all employees are subjected to routine substance testing. The employee tested positive for cannabis, was requested to vacate the premises for a “cleansing period”, and should return after seven (7) days. The employee returned after the “cleansing period” and tested positive on four (4) separate occasions. The employee had no intention to stop the consumption of cannabis and was subsequently charged with violating the zero-tolerance policy. After the disciplinary hearing, despite being employed for thirteen (13) years with an unblemished disciplinary record, the employee was found guilty and thereafter dismissed.

The employee argued before the Labour Court that she was treated differently from other employees who tested positive for consuming alcohol. The Court determined that the employer’s zero-tolerance policy is and/or was reasonable, and the policy was consistently applied to all employees who either tested positive for alcohol or cannabis. The Court also determined that the employee could not provide any evidence that the cannabis was for medicinal purposes, the medical conditions were also not disclosed to the employer, and the employee’s defence for recreational purposes also failed.

The Court, in essence, rejected the employee’s defence of unfair discrimination and an automatic unfair dismissal whereby the following was emphasised:

“I am, however, strongly of the view that the Respondent, in light of its dangerous environment, is entitled to discipline and dismiss any employee who uses cannabis or is under the influence whilst at work in contravention of its policy. While I note that the Applicant herself did not engage in such dangerous services, there is nonetheless no question that the Respondent has a workplace that is fraught with danger.  The Applicant tested positive for cannabis and continued to test positive simply on her perpetuated act of consumption of the substance, which she made it rather clear that she will not refrain from.”

Thus, the decriminalisation of cannabis will not protect employees who breach an employer’s policy in this regard. It is crucial for employers to implement substance abuse policies in the workplace. Employers should refrain from only using the term “being under the influence whilst on duty”. Employers should consult and obtain proper advice when dealing with misconduct relating to substance abuse.

Read the full judgment here.

Article by: Anjone Muller
Dispute Resolution Official – CEO Pretoria