The use of Cannabis (Dagga) in the workplace
The much-publicised Constitutional Court case of Prince v Minister of Justice and Constitutional Development and others, which legalizes the private use of Cannabis, has raised conflicting arguments in the workplace between employer and employee.
The employee will simply argue that Cannabis use is lawful, when testing positive. The employer will respond that Cannabis is an intoxicating substance, and if tested positive, constitutes in a disciplinary offence.
In the arbitration of Mthembu and others, v NCT Durban Wood Chips (KNDB4091-18 delivered 2018-09-24) the CCMA had the opportunity to deal with the issue post the Con Court ruling.
The quandary is that the main psychoactive part of Cannabis, tetrahydrocannabinol (THC), can stay in the body for days or even weeks. The employee may therefore not even dispute having consumed Cannabis but argue that he/she is not intoxicated.
An analogy can be drawn with the consumption of alcohol. The employee tests positive but maintains that he/she is not intoxicated (or drunk).
Most company rules and regulations provide for rules regulating consumption of alcohol whilst on duty and, more to the point, being under the influence of alcohol whilst on duty.
Section 2A of the General Safety Regulations, OHSA provides that the employer may not permit the presence of any person at the workplace where that person is/appears to be under the influence of an intoxicating substance.
In the case of alcohol a breathalyser test proves the consumption of alcohol. It is the clinical evidence that determines whether or not the employee is, in fact, under the influence of alcohol.
That clinical evidence includes the smell of alcohol. With Cannabis, the overt evidence of consumption may be more difficult to observe.
Where the employee tests positive, admits to the consumption of Cannabis but denies he/she is intoxicated, and furthermore asserts that consumption of Cannabis is lawful, then what recourse does the employer have?
The employee asserts that he/she has done nothing wrong. If the employer proffers disciplinary charges of the like “under the influence (of Cannabis) or intoxicated” then the question is how is (a) the intoxication (not the mere consumption) proven and (b) how is possible dismissal justified? – i.e how is the employee’s (obvious) defence rebutted?
On the first part of the question, one may not need to prove (actual) intoxication (by reference to clinical evidence (like reduced cognitive ability) if it is accepted that a positive test equates to intoxication.
This seems to have been the approach in the Mthembu matter.
The arbitrator appears to have accepted that a positive test means or equates to “working under the influence of alcohol or drugs”. The headnote to the award was worded in broader terms – “…… employers are still entitled (despite the private use of Cannabis being legal) to discipline employees who use cannabis (my emphasis) or are under its influence (my emphasis) during working hours”.
This ratio decidendi means that actual intoxication, or proof thereof, is not required. Conversely what it means is that (merely) testing positive is all the evidence that is required.
A critical part of the Mthembu award was the nature of the employer’s business and the job functions of the applicants. The use of dangerous machinery was undisputed.
The bottom line is that where safety could be genuinely compromised (given especially the nature of the employee’s job functions) dismissal may be justified (for a first offence). The deduction is that, if this is not the case, then progressive discipline may be more appropriate.
Also important is that the employer in the case had specifically communicated its zero tolerance policy towards substance abuse.
Clients are therefore advised to reword their substance abuse policies, so as to specifically refer to Cannabis, the (mere) consumption thereof and to testing positive whilst on duty. It is also recommended that any tests be conducted by qualified occupational nursing staff.
The zero-tolerance message needs to be made unequivocally clear to all employees.
Should you require any further assistance, or a review of your current policies please contact us.
Kusile Consulting Services
011 609 2630
Gavin Mulvenna - 082 891 7093
Tanya Barnard - 082 328 7101
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