With the growing cannabis industry and the Government’s active investment in cannabis production in South Africa, particularly in the Eastern Cape, it is clear that cannabis has economic value to the country. This has led to the need for legislation and a regulatory framework to ensure cannabis production and private use are properly regulated.
On 28 May 2024, President Ramaphosa signed the Cannabis for Private Purposes Bill, now referred to as the Cannabis for Private Purposes Act 7 of 2024 (Cannabis Act), into law. The Cannabis Act will establish a framework for regulating the private use of cannabis once implemented.
This enactment is significant as it may lead to more individuals cultivating cannabis for private use, within the limits of the law. Some of these individuals may be employees who could work under the influence of cannabis. The recent Labour Appeal Court (LAC) judgment in Enever v Barloworld Equipment is particularly relevant, as it addresses the issue of employees using cannabis privately and potentially being under the influence at work.
In Enever, the LAC considered four key issues raised by the employee:
- Whether the employer differentiated between her and other employees.
- Whether there was a causal link between her dismissal and her consumption of cannabis.
- Whether the employer’s policies were unfairly discriminatory.
- Whether she suffered impairment to her dignity due to the policies.
The employee, an analyst at Barloworld, tested positive for cannabis during a random drug test and was sent home according to company policy. After repeatedly testing positive and stating she would continue using cannabis, she was dismissed. She argued that the policy was discriminatory and invaded her privacy.
Given that cannabis can remain in a person’s system for months, while alcohol exits within a day, the employee contended that the policy unfairly penalized cannabis users. The LAC found that the zero-tolerance policy discriminated against the employee and infringed on her dignity, as her cannabis use did not impair her work performance.
The LAC also found that the policy invaded her privacy, as the employer couldn’t prove her private cannabis use affected her job. The court rejected the employer’s claim that the policy was necessary for Occupational Health and Safety Act compliance, deeming it an unjustifiable invasion of privacy.
The ruling emphasized that the applicability of zero-tolerance policies depends on factors like the nature of the job and workplace safety requirements. The employee’s dismissal was deemed automatically unfair, and she was awarded 24 months’ remuneration as compensation.
Employers with zero-tolerance policies should review their substance use policies to ensure they are justified for their specific workplace and consider the role and safety requirements. Employers can regulate substance use by setting reasonable cut-off limits instead of strict zero-tolerance.
With the enactment of the Cannabis Act, it is crucial for employers to update their substance use policies to address cannabis use appropriately. Failure to do so may lead to successful claims of unfair discrimination by employees, as seen in the Enever case, resulting in compensation awards by the Labour Court.
