Dismissal for consumption of cannabis at home deemed “unfair”

Barloworld, the company that fired her, has a zero-tolerance policy on alcohol and drugs, but the LAC ruled there was “no rational connection” between her continued safety in the workplace and what amounts to a ban on personal consumption of cannabis for everyone. his colleagues in the privacy of their homes.

This is a major development in labor law, which builds on previous decisions by the Constitutional Court decriminalizing the use, possession and cultivation of marijuana for private purposes.

Before being fired, Bernadette Enever worked in an office at Barloworld Equipment, a division of Barloworld. Its main business is to supply and maintain huge equipment for mining and civil engineering projects.

During a routine medical exam in 2020, Enever tested “non-negative for cannabis while on duty,” which directly led to her termination.

She smokes dagga in the evenings at home, as an alternative to medication prescribed by her doctor to relieve pain and severe anxiety, but which caused difficult side effects. That past hasn’t helped his cause with Barloworld. Nor was the fact that she worked in an office without dangerous machinery. The company has a zero-tolerance policy on drugs and alcohol and when she said she wouldn’t give up her nighttime puffing, she was fired.

Many employers will need to rethink company policy regarding the use of dagga at home

The employment tribunal upheld her dismissal, but she challenged the outcome at the employment appeal court. This decision, which has just been rendered, declares his dismissal unfair and orders compensation.

This is a potentially far-reaching finding that means many employers will need to rethink any general company policy regarding off-hours marijuana use by staff.

The three judges were well aware of the likely fallout from their decision in this case and asserted, from the outset, that the main issue at stake was “the effect…on labor discipline” of the Constitutional Court’s decision. decriminalizing the private cultivation, possession and use of dagga by adults (the Prince case).

One of the conditions of employment at Barloworld Equipment was that staff may be required to undergo medical examinations in the workplace. Additionally, the consumption and possession of alcohol at work was prohibited, and anyone “under the influence of alcohol and/or drugs” was also barred from entering the workplace.

Random checks are carried out, as well as tests during annual medical examinations, pre-employment tests, after “incidents” at work, etc. An employee whose results are “positive or non-negative” will undergo a second confirmatory test.

If the result is still positive or not negative, the employee is sent home for seven days and then retested. A positive result results in disciplinary action as part of the company’s zero-tolerance approach.

No impairment at work; no use of dangerous machines

Enever was retested several times, but because she didn’t stop smoking at night, all the results were positive. She pleaded guilty at a disciplinary hearing and explained the medical reasons why she continued to smoke at night.

She was summarily fired after the president said it would be pointless to give her a final written warning since she claimed she had the right to use cannabis and would not stop.

The company did not dispute the fact that at work she was not impaired in the performance of her duties nor was she suspected of being intoxicated. Additionally, she did not operate any dangerous machinery and did not need to drive for the company.

When the employment tribunal upheld her dismissal, it said the company had valid reasons for dismissing her, based on her “willful breach” of its policy. And that decriminalizing the use of dagga made no difference as it had violated workplace policy.

Before the Employment Appeal Court, things played out a little differently.

Presented “like a drug addict”

Enever claimed to have been discriminated against on arbitrary grounds. Her right to privacy was violated and she was subjected to “a humiliating process that presented her as a ‘drug addict’”; all this while it was agreed by both parties that her duties were not affected by her nightly smoke and that she did not operate any dangerous machinery or have to perform any other tasks where “impaired by cannabis presents a risk.

Writing for a unanimous tribunal, Dunstan Mlambo stated that Prince The case did not involve employment matters, the significance of this decision impacted the privacy rights of all employees.

Barloworld justified its policy by saying it was necessary to comply with the Health and Safety at Work Act. By extension, this was also the company’s justification for limiting what Enever does in her private time outside of normal hours.

“I do not consider this to be a justifiable reason for the violation of (his) right to privacy,” Mlambo said. It was an “excessive, unjustified and unjustifiable infringement” of his rights.

The fact that the employee “enjoyed a joint evening” at home is of no importance to the employer.

Mlambo said the fact that Enever “enjoys a joint during his evenings in the privacy of his home” was of no importance to the employer. But if company policy prevented him from adopting behavior that had “no effect” on his employer, it forced him to choose between his work and exercising his right to consume cannabis.

It might be different if an employee was “high” or impaired on the premises during work hours or had to work with heavy and dangerous machinery, but that was not the case here.

The fact that cannabis remains in the system longer than alcohol adds to the arbitrariness of the zero tolerance policy. An employee could drink alcohol at home but have a negative test result at work the next day, while an employee smoking cannabis the night before would still have a positive result.

Employers must consider the “nature” of an employee’s work

But the court cautioned that its conclusion did not apply to all employees, some of whom “perform considerably more dangerous tasks” and for whom a zero-tolerance rule on cannabis might be more justified.

Enever asked the LAC for compensation for 24 months. In considering whether to grant it, the court clarified the essence of the judgment and the essence of what other employers should take into account following this decision:

Simply having a zero tolerance policy based on workplace safety does not give an employer the right to have a uniform policy that does not take into account the nature of an employee’s work and the environment in which the employer operates.

Formal court order says company’s alcohol and substance abuse policy is “irrational” and violates privacy rights by banning office staff who don’t work with heavy equipment and dangerous to “consume cannabis in the privacy of their home”.

What weighed heavily on the LAC was the conservative restriction of personal freedoms that had no rational connection to the work it was intended to accomplish. Employers would do well to take this into account and review their approach to similar bans.

This meant that Enever had been unfairly discriminated against, that her dismissal was automatically unfair and that the company had to pay her 24 months’ salary as compensation.