CANNABIS AND THE WORKPLACE

In 2019, the Constitutional Court declared the criminal prohibition against the cultivation, possession, and use of cannabis in the privacy of one’s home, unconstitutional.

Since then, the private use of cannabis and its impact on the workplace has been the subject of debate.

On 23 April 2024 the Labour Appeal Court handed down judgment in Bernadette Enever v Barloworld Equipment South Africa a Division of Barloworld South Africa (Pty) Ltd; JA 86/22

Bernadette Enever (“Ms Enever”) was employed by Barloworld Equipment as a Category Analyst.

Following a routine medical test which detected the presence of cannabis (in breach of Barloworld’s Policy), Ms Enever was dismissed.

Following her dismissal, she referred an unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration. On 1 November 2023, the matter was heard by the Labour Appeal Court.

According to Ms Enever, she began using cannabis following the development of side effects she suffered on account of her use of prescription medication. She smoked a rolled-up cannabis cigarette every night and consumed cannabis products daily. This significantly reduced her reliance on the prescription medication.

Amongst other issues, the Labour Appeal Court was required to determine whether Barloworld’s Policy discriminated against Ms Enever on an arbitrary ground. In this regard, Ms Enever claimed that the Policy violated her dignity and right to privacy and subjected her to a humiliating process that portrayed her as a “junkie”.

The Labour Appeal Court’s decision turned on whether Ms Enever’s use of cannabis in the privacy of her home impaired her ability to perform her duties for Barloworld and whether her work was adversely affected to the extent that she created an unsafe working environment.

The Labour Appeal Court considered the principle that overbroad, unwarranted and unjustifiable invasions of the right to privacy are unconstitutional. It stated: “Within this context of the right to privacy, I can think of no more irrelevant fact to the employer in this case than the Appellant enjoying a “joint” during her evenings in the privacy of her home.”

According to the Labour Appeal Court, Barloworld had not shown that Ms Enever was “stoned”, that her work was adversely affected or that she created an unsafe working environment for herself, or her fellow employees.

It accordingly concluded that Ms Enever was successful in proving that she had been unfairly discriminated against. As dismissals based on unfair discrimination are automatically unfair, Ms Enever was awarded 24 months compensation (the maximum compensation payable in automatically unfair dismissal disputes).

It is important to bear in mind that the Labour Appeal Court accepted that workplaces are configured differently and expressly stated that the decision it reached in this instance was fact-specific and based on the case before it and Ms Enever’s job. The outcome did not extend to all of Barloworld’s employees, some of whom performed “drastically” more dangerous jobs.

It is therefore clear that each case must be determined on its own merits. There may in fact be instances where employers would be justified in disciplining and even dismissing employees where the use of cannabis (in private) impacts on an employee’s ability to perform his/her job and where an unsafe working environment is created.