Navigating Substance Policies in the Workplace: Lessons from a Landmark Case 

In today’s workplace, many employers adopt a strict approach towards the use of alcohol and other intoxicating substances by their employees. However, some policies extend to prohibit the mere presence of these substances in an employee’s system, even if consumed outside of work hours. But is this fair? A recent case involving cannabis use sheds new light on the matter.

 Key Takeaways 

1. Cannabis Decriminalisation: In 2018, South Africa’s Constitutional Court decriminalised the private use of cannabis. However, it didn’t address its implications for the workplace.

2. Labour Court Ruling: Initially, the Labour Court sided with an employer who dismissed an employee for testing positive for cannabis, despite no evidence of impairment or safety risk on the job.

3. Labour Appeal Court (LAC) Overturns Decision: The LAC found the employer’s zero-tolerance policy irrational and a violation of the employee’s right to privacy. A positive cannabis result does not address the sobriety of the cannabis user and can it can therefore not be said that it had impacted her ability to perform her duties.

The LAC found that when determining whether the employer’s drug and alcohol policy differentiated between alcohol and cannabis users on an arbitrary ground, the employee was required to show that there was an impairment to her human dignity in a comparable manner to discrimination on a listed ground.

Whilst employees at the company who are alcohol and cannabis users were subjected to the same treatment by being sent home if they tested positive, alcohol users could return to work the following day, and test negative. However, this would not be the case for cannabis users because cannabis remains in the body for a longer period.

The employee submitted that she faced discrimination as a cannabis user which impaired her dignity by violating her right to privacy (specifically to use cannabis in the privacy of her home) and ‘subjecting her to a humiliating process that portrayed her as a junkie’ when testing positive for cannabis did not mean that she was impaired in the performance of her duties.

4. Discrimination and Compensation: The LAC declared the dismissal automatically unfair, awarding the employee 24 months’ compensation, totalling over R1 million.

5. Employer Policies: Employers can still set rules for substance use to ensure workplace safety but they must ensure these policies are fair and rational, distinguishing between on-the-job impairment and private use.

The LAC found that because cannabis stays in the body much longer than alcohol, the only way the employee could comply with the workplace policy is by not smoking cannabis at all. This meant that she had to choose between her job and her right to smoke cannabis in private.

The Court indicated that the employee had been dismissed for intoxication in circumstances where she was not intoxicated.

Importantly, however, the LAC was very clear that its findings may not be true for other employees of the company in question, whose circumstances and work environment may be different.

As such, employers need to reconsider their substance abuse policies and ensure that they are drafted in a manner that will not be seen to be infringing unjustifiably on the rights of their employees. A practical approach to this will be required and not an overall reliance on a zero-tolerance policy.

 Practical Implications for Employers 

Employers should reconsider their substance abuse policies in light of this ruling. Key considerations include:

Policy Clarity: Clearly define the parameters of substance use policies, particularly distinguishing between use outside of work hours and workplace impairment.

Job Requirements: Tailor policies to the specific safety and operational needs of different job roles.

Legal Compliance: Ensure policies align with the latest legal standards and respect employees’ constitutional rights.

This landmark ruling underscores the need for a balanced approach to substance use policies. While maintaining a safe workplace is crucial, policies must also respect employees’ privacy and personal rights. Employers should review and, if necessary, revise their policies to align with this nuanced understanding of substance use.

Various alcohol intoxication cases in the Labour Courts have held that a breathalyser is not conclusive to justify a dismissal for intoxication, but should be coupled with other evidence such as the employee’s behaviour.

Therefore, if an employer relies on a zero-tolerance approach, the employer must prove that it is an inherent requirement of the job for the particular employee/s concerned.

At Chamlabour, we specialise in helping businesses navigate complex HR and legal landscapes. If you’re uncertain about your current policies or need assistance in crafting fair and effective workplace regulations, contact us today. Let us help you create a safe, compliant, and respectful work environment.

Reach out to us at 010 040 8333 / marketing@chamlabour.co.za more information.