DISCRIMINATION

Since the decriminalisation of the cultivation, possession and use of cannabis for private purposes, there have been several cases in which employees have challenged their employers regarding the banning or restriction of cannabis. The Labour Court recently considered a case of alleged discrimination for religious reasons.

·  In 2018, the Constitutional Court (CC) decriminalised the cultivation, possession and use of dagga for private purposes.

·   The CC judgement did not provide guidance on how employers should deal with or manage dagga in the workplace.

·  Dagga is an intoxicating substance and employers may implement their own rules or policies to ensure occupational health and safety.

·  Where an employee is found to have dagga in their system/body, a ‘zero-tolerance’ approach may be adopted in certain circumstances.

·  In a recent case, the Labour Court found that an employee, who was refused entry to the employer’s premises because he had dagga in his system, had failed to show that he had been discriminated against on religious grounds.

·  Employers must nevertheless guard against adopting a blanket ‘zero-tolerance’ approach.

Constitutional Court

In Minister of Justice & Others v Prince & Others, a 2018 decision of the Constitutional Court, the court created quite a stir – and some uncertainty – when it decided that the cultivation, possession and use of cannabis for private purposes should be decriminalised. The case concerned a certain Mr Prince, a practicing Rastafarian and regular user of the substance, and his fight with the Cape Law Society who refused to admit him to legal practice because of this. Given the context, the CC did not provide any guidance on how employers should deal with or manage cannabis in the workplace.

Cannabis use and zero-tolerance policies

The active compound in cannabis‚ tetrahydrocannabinol (THC)‚ apparently can linger in a person’s system for weeks and even months for heavy users – far longer than is the case with alcohol. This means that an employee who legally used cannabis at home on a Friday evening is likely to show traces of the drug if tested at work on the following Monday but will no longer be ‘under the influence’. To cater for such situations, employers often introduce a zero-tolerance policy, transgression of which could result in disciplinary action, suspension, dismissal or denial of access to the employer’s premises.

In Bernadette Enever and Barloworld Equipment (A Division of Barloworld SA (Pty) Ltd), sometime after the Prince case, the Labour Court had to decide whether the dismissal of an employee who allegedly used cannabis for medical reasons but tested positive for the substance at work, amounted to unfair discrimination. The court dismissed the claim holding amongst others that, as cannabis is an intoxicating substance, employers may implement their own rules or policies to ensure occupational health and safety. Provided the nature of its environment or operations justify it, an employer may also adopt a ‘zero-tolerance’ approach to employees being under the influence of cannabis, having cannabis in their possession, or traces of the substance in their systems/bodies that exceed a maximum level as prescribed by the employer or determined by legislation. In this case the employer’s zero-tolerance policy was found to have been justified, which also meant that any direct or indirect discrimination against the employee was justified (in this case for health reasons). It provides a so-called ‘absolute’ defence to the employee’s claim of unfair discrimination.

Note, however, that a dismissal in such circumstances must still pass the test of substantive and procedural fairness as provided for in the Code of Good Practice: Dismissal. This includes the requirement that the rule must be valid and reasonable in the circumstances.

The use of cannabis for religious reasons

In the more recent matter of Marasi and PETROSA Ltd (2023), the company, whose core business is the exploration and production of oil and gas and the participation in local and international petroleum ventures, also had a zero-tolerance policy in place. At its Mossel Bay facility, where the employee worked at the time, the company operates one of the largest gas-to-liquid refineries in the world. Given the nature and the scale of the operation, strict adherence to the processes for entry to and operation in the refinery is required to ensure the safety of all employees on site. For this reason, and to comply with the provisions of the Mining Health and Safety Act (MHSA), the company implemented a zero-tolerance approach towards the presence of cannabis in an employee’s system/body if the level of the substance (as determined by a urine sample) exceeded a maximum level, which is aligned with European safety standards and the provisions of the MHSA. According to the company rules, anyone exceeding that level could face disciplinary action or be prevented from accessing the company’s premises.

The employee, Marasi, was training to become a sangoma after receiving an ancestral calling. The company, aware of this, had accommodated him in a number of ways to complete his training, subject to his complying with the company’s substance use policy. On a particular occasion he tested positive with a substance level in excess of the permissible maximum limit, which resulted in his being refused access to the company premises. Marasi then instituted a claim against the company alleging that his exclusion amounted to an unfair suspension in terms of the Labour Relations Act (an alleged unfair labour practice) and unfair discrimination in terms of the Employment Equity Act (for religious reasons). He did not challenge the medical testing process itself.

The company’s argument was that the test it carried out fell within the permitted grounds for discrimination in section 7(1) of the Employment Equity Act (EEA) and was justified by the inherent requirements of the employee’s job as well as his employment conditions.

The court’s decision

After setting out the tests for unfair discrimination as decided by the Constitutional Court in the so-called Harksen case, the Labour Court accepted that the company’s strict rule may arguably be said to impact disproportionally the constitutionally protected rights of users of cannabis “who imbibe the substance for cultural and religious purposes” (i.e. amounts to discrimination).

However, the main issue was whether this impact amounted to unfair discrimination in this case (discrimination that is not justified by one of the defences provided for in the EEA). One of the justifications mentioned in the EEA is the inherent requirements of the employee’s job. 

If the employer could show that compliance with its zero-tolerance policy was an inherent requirement of the employee’s job, the discrimination would be fair. The requirement must, however, be genuine and must be proved by the employer.

The court found that “[a]n inherent requirement of the job is usually impervious — a complete defence — to a claim for unfair discrimination. … Once a requirement is determined to be inherent, then as a matter of law, it is not unfair discrimination for an employer to insist on employees meeting the requirement.” In this case the employer had succeeded in proving as much, which resulted in the discrimination claim being dismissed. The court also rejected the unfair labour practice claim, holding that the employee’s exclusion from the premises did not amount to a suspension.

Implications

The practical effect of this case and Barloworld Equipment can be summarised as follows:

·  An employer may implement rules that regulate the possession and use of cannabis and other intoxicating substances, including a total prohibition on its use, possession and the presence of the substance in the employee’s system/body (a zero-tolerance policy).

·  A zero-tolerance policy may result in direct or indirect discrimination; e.g. on the basis of health or religion and must be justified with reference to an employer’s particular operations.

·  A zero-tolerance policy must be justified by the employer on the basis of the particular risks attached to a certain job, for instance; by the generally dangerous nature of its operations; or legislative requirements.

·  Even without a zero-tolerance rule in place, employers may take action if its substance abuse policy is not complied with. The fact that the environment in which an employee works is not ‘dangerous’ in itself does not necessarily make a difference to the legitimacy of such a policy. The nature of the work or the work environment, however, could constitute an aggravating factor; e.g. when an employee who operates heavy or dangerous machinery is found to be in possession of, under the influence of, or affected by an intoxicating substance.

·  Where an employee is tested to establish the possible presence of an intoxicating substance, the test must comply with s7 of the Employment Equity Act. However, s7 makes allowance for the employer to introduce a policy that makes it obligatory to undergo regular medical testing if employment conditions justify this.

Cautionary note

In light of the outcome in the cases mentioned, employers might find it tempting to adopt a blanket zero-tolerance approach – i.e. implementing a rule that prohibits the mere presence of dagga in an employee’s system/body and extending it to all employees, even if their work activities pose no threat to the health and safety of any person. 

Considering the basic requirement that a rule must be valid or reasonable for its enforcement to be fair, a more nuanced approach is advised.