On 23 April 2024, the Labour Appeal Court delivered its judgment in the matter between Bernadette Enever and Barloworld Equipment South Africa.
In short, Enever was dismissed for testing positive for cannabis during a routine medical check. The main issue the Labour Appeal Court had to deal with was the effect of the Constitutional Court’s decision in Minister of Justice and Constitutional Development and Others v Prince (Prince) on workplace discipline, following a positive cannabis test. In the Prince matter, the Constitutional Court declared the criminal prohibition against adults cultivating, possessing, and using cannabis in the privacy of their homes unconstitutional.
Below we provide critical excerpts from the judgement:
“[38] Within this context of the right to privacy, I can think of no more an irrelevant fact to the employer in this case that the Appellant enjoying “joint” during her evenings in the privacy of her home. The use of a blood test alone without proof of impairment on the work premises is a violation of the Appellant’s dignity and privacy. This as the policy prevents her from engaging in conduct that is of no effect to her employer, yet her employer is able to force her to choose between her job and the exercise of her right to consume cannabis. The Respondent has not shown that she was “stoned” or intoxicated at work as a result, that her work was adversely affected or that she created an unsafe working environment for herself or fellow employees. The Respondent would not have known – apart from the Appellant volunteering the information – that she smoked cannabis and the reason thereof.”
“[44] Although no medical evidence was led, the Respondent conceded that, unlike alcohol, cannabis stays in the blood system for longer than is the case with alcohol. This underscores the point that a mere positive test for cannabis does not address the sobriety of the user or indicate whether they are impaired from carrying out duties. A further consideration, as pointed out above, is that the Appellant does not operate or work with any heavy or dangerous machinery. Her job is plainly an office desk job. I do not accept that because the Respondent has a generally dangerous workplace the rule is justified or that, that is an inherent requirement of the job.”
The court concluded in finding that the Respondent’s policy is overboard and infringes the Appellant’s right to privacy, and that her treatment as someone who was “intoxicated” when in fact she was not, is unfair discrimination because it singles out cannabis users compared to alcohol users, for what they do at home, even in situations where their conduct carries no risk for the employer. The court accordingly found in favour of the Appellant and awarded her 24 months compensation.
It should be noted that the aforementioned case has established a significant legal precedent, which precedent questions the overly broad and unjustified zero-tolerance cannabis policies in the workplace. This case further underscores the significance of policies based on merit and the recognition of an employee’s right to privacy. This judgement is in line with what we anticipated over the last four years in respect of an absolute approach to zero-tolerance.
As a result of this judgement, employers are advised to revise their substance policies in order to ensure alignment with this judgement. For assistance in this regard, please do not hesitate to contact us. We will provide further updates on this matter in due course.
