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    Employer Assist

    “Here we go again”

    SYNOPSIS

    In 2018 the Constitutional Court ruled that the private use of Cannabis in the privacy of one’s own home is legal. In 2022, the Labour Court once again had to consider Cannabis use, and the Court now favour the Employers prerogative to set workplace rules and prevent risk regardless of whether the Employee displays clear signs that their ability to perform is impacted by the substance.

    Illegal substances remain fairly easy to manage in the workplace because the use or possession constitute a criminal offence and should be considered a serious offence under the code of conduct.

    INTRODUCTION

    There has been a heavy reliance on proving an Employee’s diminished ability when considering the fairness of dismissals related to substance abuse. Apart from the effects of alcohol, which is easy to identify, this is not the case with drugs such as Cannabis, and the 2018 Constitutional Court judgement complicated matters even more, as Employer’s faced challenges in applying discipline for testing positive for Cannabis which was now legal for personal use.

    Two recent Labour Court cases, however, have changed the legal test in the Employer’s favour, which requires a reconsideration of substance policies. These changes are specifically related to the Employer’s prerogative to establish workplace rules which are not cumbersome, as well as the importance of considering dangerous workplaces.

    “Under the influence” vs “Zero tolerance”

    Many workplace policies and disciplinary codes still rely on the “under the influence” test, which has been the make-or-break fact in numerous cases requiring the Employer to sufficiently prove that the Employee’s ability to work was diminished.

    The wording was an unnecessary complication with the legalization of the private use of Cannabis by adults in the privacy of their homes, and the “under the influence” challenge has become even more prominent in recent years.

    Should an Employer prefer to use a threshold of “under the influence” as per the National Road Traffic Act 93 of 1996, then the following are stipulated:

    • “0.0-0.02g/100ml – a warning for general and professional drivers;
    • 0.02-0.05g/100ml – fine for general drivers, a demerit point on a license; criminal charge for a professional driver, the suspension of license;
    • Above 0.05g/100ml – criminal charge for all and suspension of license.”

    The above implies that where an Employee has been breathalyzed, and the reading is above 0.02, then the Employee could be subject to corrective disciplinary action.

    The preferred alternative now is for the Employer to adopt a “zero-tolerance” policy concerning all substances, especially in a high-risk working environment, as it greatly simplifies the application of the policy.

    With Cannabis use, it is much harder to determine if the Employee is under the influence or whether the drug is merely still present in the body. Adopting a “zero-tolerance” policy eliminates having to prove that the Employee was under the influence.

    To illustrate the impact of a “zero-tolerance” approach, the following cases are helpful. In the recent matter of Enever v Barloworld Equipment, a division of Barloworld South Africa (1 June 2022) the facts were as follows:

    The Employer had a high-risk working environment, yet the dismissed Employee worked in the office area and did not routinely enter the high-risk areas. The Employer had a “zero-tolerance” policy in respect of all substances. The Employee repeatedly tested positive for Marijuana, and the Employer offered the Employee several weeks to test ‘clean’. The Employee was aware of the Employer’s policy and was dismissed after a fair process was followed. The Court was not swayed by the Employee’s allegation that she used the Marijuana for medicinal purposes. The Court said that it is irrelevant if the Employee was able to perform her work. The Court noted that because Marijuana poses a challenge in the determination of being “under the influence”, the Court will accept that if the substance is present in the Employee’s body that the Employee is under the influence. The Court ruled that the Employee transgressed a rule, it is a form of misconduct, and that the Employee’s capacity i.e. ability to perform the work, was irrelevant.

    Very importantly, the Court further ruled that where the alcohol and substance policies are applied to all Employees it does not constitute discrimination.

    If the Employer adopted a zero-tolerance policy, as in the Enever case, the Employee would be in breach of the rule if the Employee reports for work with alcohol or substances present in the body or has consumed alcohol or prohibited substances while at work. The Employee’s ability to perform the job or not becomes irrelevant. The nature of the work would very well determine the most appropriate sanction.

    Although the Enever case in June 2022 has already established the principle that an Employer may have a “zero-tolerance” alcohol and substance policy and that Employee who knowingly transgress the workplace rules may face dismissal, the principle was reiterated in another recvent matter of NUMSA OBO Nhlabathi and one other vs PFG Building Glass (Pty) Ltd (1 December 2022).

    Two Employees tested positive for Marijuana while at work, and after a disciplinary process, they were dismissed. The CCMA ruled in favour of the Employer, and the aggrieved Employees approached the Labour Court. The Employees alleged that the Constitutional Court decriminalized Marianna in the matter of Minister of Justice and Constitutional Development and Others v Prince (Clarke, Stobbs and Thorpe Intervening) (Doctors of Life International Inc as Amicus Curiae); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others (CCT108/17, 18 September 2018).

    The Labour Court ruled in the PFG Building Glass case that the legalization of the private use of Marijuana by an adult in their home does not provide ‘safe passage’ for workplace policy transgressions. The Prince ruling did not interfere with the definition of “drug”. The Court upheld the dismissal of the two employees.

    INCAPCITY

    Where the Employee has a substance dependency, it is essential to provide such an Employee with assistance and support, as dependency is considered an illness under incapacity legislation. This was highlighted in the case of Jansen and Pressure Concepts (2005) 26 ILJ 2064 (BCA), where the Court ruled that the Employer’s failure to accommodate the Employee with an alcohol problem before dismissal may render the dismissal unfair. The principle that alcoholism is a form of incapacity was also supported in the matter of Naik vs Telkom SA (2000) 21 ILJ 1266 (CCMA)

    Unccoperative Employee’s

    If the Employer eventually dismisses the uncooperative Employee, and the Court ruled that the matter may be treated as misconduct and not incapacity as detailed in Portnet (Cape Town) and SATAWU OBO Lesch (2002) 23 ILJ 1675 (ARB).

    In Spoornet (Ermelo) v SARHWU obo Nkosi [1998] 1 BALR 108 (IMSSA), it was found that whilst the Employee denied that he had consumed liquor, he refused counselling and rehabilitation assistance because he did not have a drinking problem. His dismissal was therefore found to be fair even on a first offence and with a clean disciplinary record. It was stated that if an Employee denies that he has a drinking problem and refuses assistance, then it is treated as misconduct. It is, therefore, critical that Employer’s do not automatically assume claims of dependency, as this can only be diagnosed by a medical practitioner.

    In the matter of SALSTAFF/AIWU OBO Govender and SAA (2001), the Court rules that dismissal may be justified where an employee failed to disclose at the job application stage that he/she has a substance dependency problem.

    Illegal drug-related incidents

    The use and or possession of illegal drugs at work, for example Tik, Speed, Opioids, Mandrax, Accid, Heroin, cocaine, and Cannabis, is a contravention of the Drug Act and a dismissable offence.

    Alcohol and substance policies may make provisions for regular or random drug testing, and it’s even recommended to agree to this as part of the employment contract. Most Employers with manufacturing operations or driving/transport operations have mandatory annual medicals that would include a drug screening test. The renewal of, for example, a forklift license also requires a medical inclusive of a drug test.

    The Employer can also provide in the alcohol and substance policy that if an Employee appears to be under the influence or possibly impaired that he/she may be subjected to a test.

    Evidentiary challenges

    Although an Employer cannot physically force an Employee to either an alcohol or drug test, a high-risk working environment might require every person, including visitors and service providers, to undergo a breathalyzer test before gaining permission to enter the premises. In a situation like this, the Employee would be contractually required to subject themselves to a daily breathalyzer test because it is what the Employer requires subject to the OHS Act.

    Workplace disciplinary hearings are not subject to a “beyond reasonable doubt” onus of proof, such as in criminal matters. Therefore, the refusal to take these tests can be used in defence of the Employers case.

    THE IMPACT ON YOUR BUSINESS

    There is a legal duty for an Employer to maintain a safe working environment, and the consequences of a breach of the OHS Act can have criminal consequences for Employer’s.

    OUR RECOMMENDATIONS

    As your HR & IR business partner, we recommend that you to revise your policies and procedures in relation to alcohol and substance abuse, including the following:

    • Declare Cannabis and any other drug as a mind-altering and illegal substance in the workplace.
    • Apply a zero tolerance policy instead of relying on proof of being “under the influence”.
    • Provide for a declaration of personal and medicinal use of Cannabis, as well as substance dependency.
    • Provide counselling support and drug awareness campaigns
    • Provide for voluntary declaration as a mitigating factor.

    Furthermore, contact us for an explanation on how we can assist you in terms of internal policies and procedures, for a full and comprehensive quote on our payroll offerings, as well as a quote on our payroll risk assessment options.
    Act.

    REFERENCES
    • Occupational Health and Safety Act 85 of 1993
    • The Medicines and Related Substances Act 101 of 1965
    • The Liquor Products Act 60 of 1989
    • The National Road Traffic Act 93 of 1996
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