May 27th, 2019
The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of three employees who tested positive for cannabis in a working environment where the employer has zero tolerance for substance abuse policy in place, is fair.
This means that irrespective of the fact that the Constitutional Court ruled that you are entitled to smoke cannabis in the privacy of your home, you cannot expect your employer to deviate from implementing the zero tolerance rule.
Yes you can smoke cannabis at home, use it for medical purposes but if the employer wants to test you at any stage, and you test positive, you can’t be dismissed.
In this case the three applicants were dismissed for testing positive for cannabis in a test conducted in working hours. They claimed that they had smoked cannabis at home, not during working hours.
The applicants were aware that due to the highly dangerous operations of their employer, it had a zero tolerance approach to working under the influence of alcohol or drugs.
According to CCMA Commissioner Charles Oakes, the prohibition of the employer was reasonable. The workplace is dangerous with heavy machinery and the employer is responsible in terms of the Occupational Health and Safety Act to prevent accidents in the workplace.
The Zero tolerance policy was communicated to employees and they agreed to it when they accepted their employment contracts.
According to Oakes, the Constitutional Court declared legislation criminalising the private use of cannabis inconsistent with the Constitution as in trench upon the private use and consumption, which does not constitute undue harm.
This is consistent with the legality around other intoxicating substances such as alcohol. It is the danger around the intoxication which now becomes an element for consideration. The court wisely limited its findings to use cannabis for private use, says Oakes.
According to him, with cannabis and alcohol there is an inkling that intoxification could impair one’s ability to wrk to the standard, care and skill required by the employer.
The above information was issued by SASOHN on 5 April 2019, following feedback from CCMA.