Labour Appeal Court Overturns Cannabis Dismissal with R1M Award

An important judgment was handed down in the Labour Appeal Court of South Africa (LAC) on 23 April 2024.[1] The judgement deals with the important issue of cannabis use in private, and has implications for companies that have a zero tolerance policy for drugs and alcohol. Zero tolerance means employees who arrive at work and test positive for cannabis (or alcohol) may face disciplinary action or even dismissal, even if they are not intoxicated and are able to perform their duties.

 

The case in question involves dismissed employee, Bernadette Enever (Enever), who was dismissed by employer, Barloworld South Africa (Pty) Ltd (Barloworld), after she tested positive for cannabis during a routine medical test at her workplace. Barloworld has a zero tolerance policy for alcohol and drugs and employees are tested randomly to check if they have intoxicating substances in their system. Employees may not have any traces in their system, which is what zero tolerance implies.

 

This case is important in view of the Constitutional Court decision in Minister of Justice and Constitutional Development and Others vs Prince where South Africa’s apex court ruled, in September 2018, that the criminal prohibition against adults cultivating, possessing and using cannabis in the privacy of their homes was unconstitutional. Enever was using cannabis in her own home to treat anxiety and insomnia as she did not want to use prescription drugs due to unpleasant side effects. She stated that she got better results from “smoking a joint” in the evening as it calmed her down and helped her sleep better. She also used cannabis oil for the same reason. The company did not change their zero tolerance policy after the 2018 Constitutional Court judgment, and Enever fell afoul of this policy.

 

In January and February of 2020, Enever tested positive on numerous occasions for cannabis. Despite the positive tests she had refused to stop using cannabis and was charged with misconduct and summoned to appear at a disciplinary hearing. Enever gave reasons why she used cannabis and believed that the company’s zero tolerance policy was discriminating against her as it treated cannabis users differently to alcohol users. Enever stated at the hearing that she would not stop and was thus found guilty at the hearing and was dismissed for being in breach of the company’s zero tolerance policy. She was dismissed in April 2020.

Zero Tolerance Policy Discriminatory & Overly Broad

Enever referred her case to the Labour Court in South Africa and claimed that her dismissal was an automatically unfair dismissal as she had been unfairly dismissed on the basis of a discriminatory policy, where she as a cannabis user was being treated differently to employees who used alcohol, as both were legal in South Africa. Enever lost her case in the Labour Court. In a judgment[2] handed down on 1 June 2022 the judge, Makosho Mamikie Ntsoane, dismissed Enever’s application, and found that her dismissal was fair and that she was not the victim of discrimination. The company’s zero tolerance policy was vindicated by the judge who did not believe that Enever, as a cannabis user, was prejudiced by the stipulations and application of the policy. The judge upheld her dismissal and stated that the company had acted fairly and consistently in terms of its’ policy.

Enever was not satisfied and lodged an application in the Labour Appeal Court of South Africa, where she appealed the decision of judge Ntsoane. The LAC judges disagreed with the decision of their colleague in the Labour Court, judge Ntsoane. The LAC, in a judgment written by judge Mlambo and endorsed by judges Wagley and Davis, found that Enever had proven discrimination in terms of section 6(1) of the Employment Equity Act and that her dismissal was therefore an automatically unfair dismissal as per section 187(1)(f) of the LRA. The judgment concurred with Enever’s belief that the zero tolerance policy was discriminatory and prejudicial as it treated her differently to alcohol users. Alcohol users could use alcohol at home over the weekend, pass a test on Monday and face no consequences. Enever did not receive the same treatment as cannabis stays in a persons systems much longer, and even though one might not be intoxicated, a positive result occurs when tested.

Overturns Cannabis Dismissal with over R1M Award

In the judgment, the judge stated that the employer’s zero tolerance policy was overly broad and infringed upon Enever’s right to privacy. He found that the employee’s treatment as someone who was arriving at work “intoxicated” when she was clearly not, amounted to unfair discrimination as it applied differently to cannabis compared to alcohol, both legal intoxicants. He believed that the users of the intoxicants, alcohol and cannabis, were being treated differently by the policy.  The judge stated that alcohol and cannabis users were being treated differently by the policy for “what they do at home, even in situations where their conduct carries no risk for the employer.”

Maximum compensation for an unfair dismissal as per the LRA is 12 months’ salary. Maximum compensation for an automatically unfair dismissal is 24 months’ salary. The employee lost her job and was the victim of a discriminatory policy, resulting in the judges awarding Enever the maximum compensation of 24 months, which based on her monthly salary at the time of her dismissal amounts to R1036 794-00. At the time of writing this article, Barloworld had not indicated whether or not they would be challenging the LAC decision in the Constitutional Court.

Employees will view this judgment as a victory for workers, while employers who have zero tolerance policies may experience some consternation regarding the judgement and may have to revisit their disciplinary codes and procedures to fall in line with the principles established in the judgement as CCMA commissioners who adjudicate unfair dismissal disputes are bound by this judgement.

 

*Dean Isaacs is a part time CCMA Commissioner and member of consultancy Employment Relations Solutions.

[1] Case No. JA86/22 – Bernadette Enever and Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (LAC)

[2] Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20;JS926/20) [2022] ZALCJHB 142; (2022) 43 ILJ 2025 (LC); [2022] 10 BLLR 962 (LC) (1 June 2022)