‘Baked’ at work? What can happen?

28 February 2023 175
Recently a client approached us with a concern arising from the well-known Minister of Justice and Constitutional Development & Others v Prince & Others case wherein the use, cultivation and possession of marijuana were decriminalised. Our client was concerned that employees were arriving at work under the influence of cannabis claiming that they are now constitutionally allowed to use cannabis and that as an employer he could do nothing about it. Is this so, and did the Prince case in effect also legalise the use of cannabis at the workplace?

As much as the Prince case declared sections under the Drugs & Drug Trafficking Act No.140 of 1992 as well as the Medicines and Related Substances Control Act No. 101 of 1965 to be invalid and decriminalising the private use, cultivation and possession of cannabis, it is a very different question as to what may happen to an employee that is under the influence of cannabis at his or her place of work.

Our labour court, in the recent case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (Pty) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 had to establish whether the dismissal of two employees who tested positive for cannabis in the workplace whilst on duty was substantively fair. 

In considering the matter, the Labour Court confirmed that the decriminalisation of cannabis for private use did not extend to usage at your place of work. The ‘Prince’ judgment did not provide an employee with protection against disciplinary action in the event that the employee contravenes the employer’s disciplinary code and procedures. 

In as much as the Constitutional Court decriminalised the private use of cannabis, an employer remains entitled to its own standards of conduct in the workplace and the employer and employee relationship remains subject to company rules, codes and procedures. An employer’s conditions of employment, depending on the nature of work, may require an employee to undergo a drug test to determine if an employee is fit to report for work. Whether or not an employee is fit to report for duty will then be determined by management exercising reasonable discretion. 

Employees are also subject to the health and safety rules as set out in the Occupational Health and Safety Act 85 of 1993 (OHASA). The General Safety Regulation 2A of OHASA provides that employers are not permitted to allow any person who is or who appears to be under the influence of intoxicating liquor or drugs, to be allowed access to the workplace nor may an employer allow any person to have intoxicating liquor or drugs in his or her possession in the work environment. Cannabis is an intoxicating substance, and in the event that there is evidence to prove on a balance of probabilities that an employee is under the influence of cannabis, the employer would be entitled to take disciplinary action against the employee.

An employer retains the right to institute disciplinary action in the event that an employee contravenes its disciplinary code and procedures, on condition that the employer has adopted a policy restricting the use of drugs in the work environment and that there is knowledge of such a policy by the employees of the company. 

The Labour Court accordingly only confirmed that cannabis is allowed for private use and consumption but not in the workplace if the employer’s policies prohibited such and that employees could be dismissed for testing positive for cannabis whilst on duty. 

If you are concerned as an employer about the risk of cannabis use in the workplace, it is important that you consult a labour professional to assist you in reviewing your existing policies and procedures to ensure that your position in respect of cannabis use in the workplace is clearly regulated.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).