Two employees working at a glass manufacturing company were dismissed for testing positive for marijuana. They claimed that the highest court in the land (Constitutional Court) said that marijuana is a herb and not a drug, however Judge Connie Prinsloo in the Labour Court did not agree and indicated that their claim was untrue and misinformed. The Judge stated that the legalisation of marijuana for private use does not mean that rules in the workplace relating to safety can be ignored.

Judge Prinsloo indicated that the two employees’ understanding of the Constitutional Court’s decision was either “very limited or totally wrong”, and dismissed their attempt to review an arbitrator’s decision that their dismissal had been fair.

“They moved from a wrong premise when they approached their case as one where dagga was no longer to be regarded as a drug and thus automatically excluded from [their employer’s] alcohol and drug policy,” she said, accusing the men of being “opportunistic”.

The company’s policy was that of Zero Tolerance and indicated the sanction for failing a workplace drug test is always dismissal. The rationale behind this policy and sanction is easy to understand as anyone whose abilities are impaired could be a danger to themselves and potentially others while working with gas, large forklifts, furnaces and dangerous chemicals.

The two manufacturing operators were dismissed after pleading guilty to a charge that they tested positive for marijuana. They approached the relevant Bargaining Council, and the arbitrator who heard arguments from NUMSA on behalf of the two employees. NUMSA stated that the Constitutional Court had “taken away the stigmatisation of calling a plant a drug”.

The company’s sales manager who chaired the disciplinary hearing was accused by NUMSA official who said: “I am not going to waste time with the person who is still uptight in calling a plant a drug.”. The sales manager subsequently indicated that because their workplace is dangerous in nature, it has to comply with the Occupational Health and Safety Act has to be complied with and the company cannot run the risk of staff, who are under the influence, negatively affecting colleagues or damaging equipment.  

The one employee testified that he tested positive in March 2020 even though it had been three days since he smoked marijuana. “Whatever he did with dagga, he did it at home and not when he was at work,”.

The other employee did concede that he was aware of the company’s alcohol and substance policy, but he said it was silent on marijuana, and the union official told the arbitrator: “There is no policy that could have dismissed them because there is nothing talking to the issue of the dagga, simply because today dagga in South Africa is legalised. It is legalised for an individual to use for personal consumption in his private space, and there is nothing that forbids the individual to come and work.”

It became clear to the Judge that the two employees (and their official) confused the decriminalisation of dagga for private use and an employer’s right to act against workers who contravened a disciplinary code. The Judge in her ruling stated that “Mr Mkoko was fixated on the fact that it was no longer a crime to use dagga, and in the process of posing questions he made several misleading statements and propositions which are not to be found in the cases he relied upon,”. “The Constitutional Court did not interfere with the definition of a ‘drug’, nor did it declare dagga or cannabis to be a plant or a herb.” 

It became clear that the specific judgment did not offer any protection against disciplinary action if employees contravened company policies or disciplinary codes. “In my view, it matters not that the [men] used dagga in private, that they posed no danger on the day they tested positive, that their period of employment was not insignificant or that they had a clean disciplinary record,” she said.

“A zero-tolerance policy is one that does not allow any violations of a rule. Dismissal was an appropriate sanction.”

Based on the above it is clear that although it is legal to smoke marijuana in the privacy of your home, if your company has a Zero Tolerance policy and you test positive, you may be dismissed following a disciplinary hearing and the dismissal will be seen as fair. What is important to note is that should you not have such a policy, you might not be able to dismiss so easily.

Contact us to advise on whether and how to proceed, should you have experienced an incident similar to the above, or if you would like us to draft or review your policy to take care that you are covered.