Ever since the landmark Constitutional Court decision which declared the smoking of cannabis to be legal in your private home, there have been some questions regarding how this will impact the workplace. The case of Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA) deals with this issue.
The three employees were among several employees who were dismissed after testing positive for cannabis during a test conducted during working hours. A urine sample was taken.
The employees claimed that they had not smoked the drug during working hours. The employer led evidence that, owing to the highly dangerous operations in its factory, it had a zero-tolerance approach to working under the influence of alcohol or drugs. The employees were aware of this and many other employers have similar policies.
The Commissioner noted that the Constitutional Court had just declared private use of cannabis legal. However, it was found that the employers are still entitled to discipline employees who use cannabis, or are under its influence, during working hours.
The employer’s operations indicated that such a prohibition was reasonable and the employees knew that they were not allowed to report for work while under the influence of cannabis. The employees’ dismissal was therefore fair. The application was dismissed.
The employees were all aware that the employer has a zero-tolerance view towards substance abuse and were aware of the possibility of dismissal if they tested positive for such substances.
It was for them to make sure that when they smoke for private use it must not result in them reporting for work under the influence of cannabis. This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day. This places himself, other employees and the company at risk. In addition, it exposes the company to unnecessary financial claims.
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You need to have watertight policies in your organisation regarding cannabis. Marianne Gradwell and the rest of the Global Business Solutions team will be able to help you draft these policies. Contact her for more information.