Cannabis law – To zol or not to zol

In a recent consideration the CCMA in South Africa explored the use of cannabis during working hours in the case of  Khumalo v Game Stores 2021. The employee was dismissed as he was found smoking a “zol” containing cannabis during his lunch break. The employee held that he was unfairly dismissed, as his cannabis consumption had nothing to do with his employment and that he was unaware of his employer’s zero-tolerance policy surrounding alcohol, narcotics, and any mood- and mind-altering drugs.

The employee was employed as a cashier for a chain retail store. His main tasks consisted of customer contact and scanning products that are sold at the outlet. The employer had set in place a strict zero-tolerance policy regarding the use and consumption of alcohol, drugs whether legal or illegal that may alter moods or behaviour.

The employees case is multi-faceted in a time where the consumption of cannabis seems to be more normative than ever before in South Africa. Therefore, a closer look at section 188 of the Labour Relations Act makes way for the grounds on which a fair dismissal can be established. The CCMA had to consider whether a policy was in place to combat the misconduct referred to in the matter. This meant establishing whether the employer had made the employee aware of the policy prohibiting the conduct of the employee.

In the above matter, the employee had initialled the pages pertaining to the policy in dispute and it served as consent to the policy stipulating that the use of alcohol, drugs or narcotics would be grounds for summary dismissal. Furthermore, the CCMA had to consider whether such a policy was fair and applied consistently throughout the organisation.  It was established that the employer did not have a culture of using cannabis and the necessity for the organisation to function optimally dependant greatly on the sobriety of those in the position of the employee. Lastly, the CCMA considered whether a dismissal was an appropriate sanction in the circumstances.

The employee relied greatly on what he considered the unreasonable nature of the policy and dismissal, but alas this failed. The CCMA ruled that the employee had consented to the policy and sanctions by signing his contract of employment, deeming the policy reasonable to enforce. Furthermore, the CCMA held that the policy served a valid purpose and that the contravention of such a policy could lead to a fair dismissal.

Considering the above, employees need to be certain as to the policies that they have bound themselves to. The onus to read a contract of employment does not rest on the employer however, the duty to establish that policies are applied consistently in the workplace are that of the employer. Employees must also acquaint themselves with the policies of the organisation and act with the necessary caution during working hours.