By Zurayda Mayet
Marijuana or its scientific or botanical name “cannabis, cannabis sativa or indica (hemp), cannabis ruderalis” is a green plant that is dried up. It is made up of flowers, and seeds. These terms refer to the psychoactive and intoxicating components of the plant. The common terms used for cannabis in South Africa include marijuana, weed, pot, grass, dagga, ganga, herb, joint and zol.
The cannabis industry is growing exponentially around the world as various countries have legalised the use of cannabis in terms of recreational and medicinal use. The stigma attached to the plant is being eradicated and it is becoming less of a taboo subject. Historically cannabis was regarded as an illicit drug in South Africa however, the case of Minister of Justice and Constitutional Development v Princehas created a platform for the use of cannabis in terms of private use. According to the Constitutional Court judgement
“The issue of the cultivation of cannabis in private by an adult for personal consumption in private should not be dealt with on the basis that the cultivation must be in a dwelling or private dwelling. It should be dealt with simply on the basis that the cultivation of cannabis by an adult must be in a private place and the cannabis so cultivated must be for that adult person’s personal consumption in private. An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”
From the abovementioned excerpt from the case it can be inferred that there is no clear meaning as to what constitutes a private or a private dwelling and this remains uncertain currently. It is important to note that the workplace cannot be regarded as a personal or private space. The use of cannabis in one’s personal home may not be regarded as a criminal offence. However, a pertinent aspect is that there could be confusion as to whether a person may use cannabis in their car and whether a car can be regarded as a private and personal place. It would be incorrect to assume this, even though there is an understanding that this would constitute as private, it is in fact, in a public area whereby various individuals will be in close proximity to the vehicle. The term “private use” is going to be a very contentious issue which will have to be researched and rationalised to people who will be using the plant.
The judgement handed down in the case will have a substantial effect on the workplace as employees will be permitted to use the cannabis in their private spaces without any criminal sanction being imposed on them. However, policies in this regard have not been developed and should an employee attend the workplace and a random drug test is conducted, they will be considered as being intoxicated and under the influence of drugs. The employee can however, face the sanction of dismissal as he or she will be committing a misconduct.
One of the most vital questions that can be deduced from the Constitutional Court judgement mentioned above is, is it appropriate or safe for a person to become or already be intoxicated whilst at work? Health and safety regulations are a prerequisite for all workplaces. Furthermore, there is a common law duty on employers to take reasonable care to provide safety to all their employees in the workplace and maintain efficiency in the workplace. The Occupational Health and Safety Act is the governing legislation pertaining to the safety of employees in the workplace. Not only is this obligation in terms of the Occupational Health and Safety Act, it is also embedded in terms of the Constitution of the Republic of South Africa which maintains that every person is entitled to a secure working environment. These regulations must be adhered to in order to provide for the proper safety of all individuals within the working environment.
In light of the above, the use of cannabis in the workplace could prove to be problematic when an employee has to operate heavy duty equipment or drive a special purpose vehicle within the scope of their employment while they are under the influence of cannabis. This could lead to dire consequences as the employee will be in breach of his or her employment contract based on intoxication.
The current labour framework does not provide guidance as to how cannabis should be addressed in the workplace after the Constitutional Court Judgement. As such, in South Africa it is unacceptable for an employee to report to the workplace if he or she is under the influence of alcohol or drugs. The consequence of being under the influence of cannabis will lead to an offence relating to misconduct or regarded as incapacity which will lead to the ultimate dismissal of an employee.
Due to the fact that there is an increase in the use of cannabis in the workplace, employers are obligated to draft and implement policies. This must be done in order to inform employees about the consequences of non-compliance to workplace policies regarding the use of drugs including cannabis. It must be noted that most workplaces prohibit intoxication and often use the zero-tolerance measure. It is important to understand what the zero tolerance measure entails. “Zero tolerance is a means to eliminate undesirable behaviour amongst employees which will essentially provide an automatic punishment for violating company rules”. General issues that fall within the zero tolerance categories may include drug abuse, sexual harassment, violence and discrimination.
If drug testing mechanisms are properly regulated this could alleviate, mitigate or manage the risks of accidents in the workplace, affording those who need to use cannabis for medicinal purposes the ability to do so while reducing the risk. It must be noted that the use of cannabis has not been specifically regulated in the workplace after the judgement in Minister of Justice and Constitutional Development and Others v Prince. This should be understood, in the context of the employee attending work under the influence after having legally used the cannabis at home.
Cannabis can, if used improperly or not regulated, cause work-related issues. It might even exacerbate misconducts leading to breakdowns in employee and employer relationships and ultimately dismissals. In the past such dismissals could very easily occur where the employee was simply seen as smoking cannabis in the workplace, with increased health intelligence, this may fade away. There is no need therefore, to anticipate cannabis related misconducts, if its use in the workplace is regulated as opposed to merely being forbidden.
Should the effects of cannabis be extremely apparent in that the employee is unable to perform his or her functions at all, the dismissal of the employee will be warranted on the basis that he is intoxicated. This will be evident in that the employee will be unable to complete their work and their conduct could be detrimental to their own safety as well as that of his or her fellow employees
It is apparent that a lack of legislation or direction in South Africa relating to cannabis use exists in terms of medicinal and recreational use. The labour market needs to be guided as to the use and possible repercussions thereof. It would be beneficial to understand the challenges that lie ahead and the possible policies that will have to be drafted in order to assist employers with understanding the changing context of the use of cannabis and the impact that it will have in the workplace.