Over the past few years, the use of cannabis has been a hot topic in South Africa, whether for recreational or medical purposes, and it would seem now even more so in the recent Labour Appeal Court (LAC) case of Bernadette Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC.
Bernadette was employed as a category analyst. On 29 January 2020 she was required, as per the Employee Policy Handbook (which incorporated the Company’s zero-tolerance approach to the consumption and possession of drugs and/or alcohol in the workplace) to undergo a random drug test. Her test results came back positive for cannabis, and she was sent home. Bernadette was subjected to a disciplinary hearing where she pleaded guilty and was subsequently dismissed. The Labour Court upheld the dismissal, and she referred the matter to the Labour Appeal Court (LAC).
The pertinent issue that the Labour Appeal Court (LAC) had to rule on was whether the Company’s Zero-Tolerance Policy on the possession and consumption of drugs and alcohol in the workplace was discriminatory. If yes, then the dismissal would be seen as automatically unfair since the employee was subjected to unfair discrimination in the workplace.
The LAC held that the company’s zero-tolerance approach to testing positive for cannabis at work infringed Bernadette’s dignity and privacy and thus discriminated against her and awarded her 24 months of compensation.
The importance of this judgment for employers is the following:
- You can never follow a blanket approach when it comes to a zero-tolerance policy;
- There needs to be a nexus or causal link (which must be proven on a balance of probabilities) between enforcing a strict zero-tolerance policy for cannabis and ensuring workplace safety;
- It is evident that testing positive for cannabis does not automatically mean that an employee cannot perform his/her duties;
- Should an employer be able to prove that an employee’s ability to safely carry out their duties is impacted by testing positive for cannabis, the Court may arrive at a different finding.
Each case will always be determined on its own merits.