An employee caught on the wrong side of a company’s zero-tolerance policy can be fairly dismissed for testing positive for cannabis.

This article will provide a practical understanding of the Labour Court’s judgement and its potential effect on zero-tolerance policies in the workplace through an analysis of NUMSA obo Nhlabathi and 1 Other vs PFG Building Glass (Pty) Ltd and 2 Others (JR1826/2020) [2022] ZALCJHB 292.

Since the Constitutional Court’s judgement in Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC) declaring the decriminalisation of the use, possession and cultivation of cannabis by an adult in a private place for their personal consumption, there seems to be a high belief that employers can no longer take disciplinary action against employees found to be working under the influence of cannabis.

In the recent matter between NUMSA obo Nhlabathi and 1 Other vs PFG Building Glass (Pty) Ltd and 2 Others (JR1826/2020) [2022] ZALCJHB 292, the Labour Court was requested to review and set aside an Arbitration Award made in 2020 at the National Bargaining Council for the Chemical Industry (NBCCI). The Council found that the dismissal of the two (2) Applicants (employees) for having tested positive for cannabis in their workplace was fair. The Applicants argued there was no valid reason for their dismissal on the basis that the Respondent (employer) did not have a rule or policy which stated that “once one tested positive for dagga, it will warrant a dismissal” and further to that, the Constitutional Court decriminalised dagga on the alleged basis that, “dagga is not a drug, it is just a plant, it is a herb.”

The Respondent argued that it had a zero-tolerance testing policy for being under the influence of alcohol or drugs within the workplace due to the nature of its business being hazardous. Furthermore, the Respondent argued that its working environment must be safe and compliant with required safety standards and regulations. The Labour Court considered both arguments and found that the Constitutional Court did not interfere with the definition of a “drug”, nor did it declare dagga or cannabis to be a “plant” or a “herb”, as argued by the Applicants. The Labour Court held that the “Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes”. The Labour Court further found that the employer had a valid and justifiable zero-tolerance policy regulating the use of alcohol and drugs within its workplace, which the Applicants were aware of, having been given training on the policy. The review application was subsequently dismissed, and the Commissioner’s findings relating to the fairness of the Applicants’ dismissals were held to be reasonable.

The Labour Court has consistently determined that employees who seek to rely on the Constitutional Court judgement in the Prince case for protection against disciplinary action will be left high and dry. This caveat was initially given in the matter between Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd [2022] 10 BLLR 962 (LC), where the Court held that the “The Constitutional Court judgment does not offer any protection to employees against disciplinary action should they act in contravention of company policies.” The similarity between the PFG Building Glass and the Barloworld Equipment matter is that the nature of their respective working environments has prevalent risks of danger and hazards, which requires strict compliance with health and safety standards and regulations. It remains to be seen if the Labour Court will maintain its legal position regarding employers enforcing zero-tolerance policies in their workplace where there is no reasonable risk of danger arising from an employee found to be positive for cannabis.

The above matters should serve as a sobering reminder that zero-tolerance policies may be valid and enforceable as they are relied upon to ensure that health and safety standards and regulations are effectively enforced to minimise risks of hazardous incidents occurring in the workplace. Employers are thus encouraged to seek legal advice before introducing zero-tolerance policies and taking disciplinary action against employees who breach their zero-tolerance policies relating to alcohol or drug use.

Written by Zwelakhe Thwala - Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)