When people Zol… before work

The latest case in South Africa pertaining to the use of cannabis in the workplace is Rankeng v Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 (CCMA).  In this case, the arbitrator had to decide whether the dismissal of employees who tested positive for cannabis at work was fair.

In this matter the employee was employed as a picker and the employer conducted business in the cosmetics and fragrance industry. The employer, as part of its workplace safety regulations adopted a workplace policy which prohibited employees from working whilst under the influence of alcohol and drugs.

The policy was drafted in line with the Health and Safety Act and as such, was strict in its interpretation. In terms of the policy:

  • Employees cannot remain on the premises if it is suspected that the employee is under the influence of a narcotic drug.
  • Management by exercising reasonable discretion will determine as to whether an employee is fit to report for duty;
  • The appropriate sanction for being found under the influence of narcotic drugs in the workplace is dismissal, even for a first offence.

A witness at the workplace testified that he had discovered that the employee’s eyes were red and watery.  The witness confronted the employee as to whether he was under the influence of drugs and the employee admitted to smoking “dagga” around 5h30am before he left his residence to attend the workplace at 6h30am.  The employee agreed to take a Lancet laboratory test where it was confirmed that he tested positive for cannabis.  However, the employee had been allowed to remain at work in the despatch area (for safety purposes) for the remainder of the day.

The arbitrator was faced with the question as to whether the applicant was under the influence of the drug which he admitted to taking in the morning before coming to work.  Furthermore, whether testing positive for cannabis was a dismissible offence in terms of the employer’s workplace policy.

The arbitrator found the following:

  • “The reasonable discretion of management was that the employee was fit to continue work;
  • The employer exercised reasonable discretion to restrict him to a particular area;
  • The problem with a charge of being under the influence of drugs is that there have not been any scientific methods of determining whether a person is under the influence of the drug such that there is an impairment in their performance;
  • The employer needs to prove that the employee was under the influence of a narcotic drug such as dagga or cannabis;
  • Employers rely on circumstantial evidence such as obvious signs of physical and mental impairment;
  • Although the employers evidence was that the applicant’s eyes were red and watery, it did not refer to any evidence of impairment which would suggest an inability to perform tasks allocated. On the contrary, when management was empowered by the Code of Conduct and Discipline to send the employee home, they chose to allow him to work.
  • This was an acceptance that although the employee tested positive for cannabis, which he already admitted to taking, it had not affected his ability to perform his work”

The arbitrator held that the dismissal was too harsh and not an appropriate sanction.  Furthermore, the employee was aware that the workplace policy prohibited the use of drugs on duty and that he was irresponsible to take the substance knowing that it would impair his mental and physical abilities.

The employer was ordered to reinstate the employee without any back-pay.  The employee was also issued with a written warning valid for 12 months.

In light of the above, employers should revisit their workplace policies and codes of conduct in order to make provision for the use of cannabis.  More specifically, employees should be informed as to whether the use thereof will be permitted or not.  The Occupational Health and Safety Act maintains that employers should take into account the hazards that are faced in the workplace, the possible risks that these hazards may impose in terms of workplace safety and take reasonable steps to avoid these hazards in the circumstances. As such, the impact on the effects of the use of cannabis is imperative in this consideration.

 

This article was written by Zurayda Mayet. She is a director at Kleingeld Mayet and has acted for a wide range of clients that include multinational-corporations, government institutions, non-governmental organizations, private individuals, listed and unlisted companies. Her experience stretches across corporate, commercial, company and cannabis law in various sectors both in South Africa and Lesotho.