In the below matters, it can be seen that there is a growing trend by our Courts and CCMA looking at more refined Alcohol & Drug Policies that consider the nature of the work, relationship between test results and actual impairment, and privacy rights.
In the matter Enever v Barloworld Equipment South Africa, a Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC – The Labour Appeal Court (LAC) set aside the order of the Labour Court where it was held that the dismissal of an employee who tested positive for cannabis in the workplace was fair.
Since the Constitutional Court’s decision in Minister of Justice and Constitutional Development and Others v Prince, it has been a known fact that it is not a criminal offence for adults to cultivate, possess and use cannabis in the privacy of their homes.
However, what happens when the private use of cannabis at home results in an employee presenting themselves in the workplace and testing positive for cannabis? Whilst employers may have justifiable occupational health and safety reasons to bar certain conduct of its employees, the LAC found that this was not a justifiable reason for the infringement of the Appellant’s right to privacy.
The LAC Held:
- 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.
- The Policy prevented the Appellant from engaging in conduct that is of no effect to the Respondent;
- The Policy placed the Appellant in a situation where she was forced to choose between her job and the exercise of her right to consume cannabis; and
- The Respondent could not show that the Appellant’s work was adversely affected or that she created an unsafe working environment for herself or fellow employees.
That case highlighted the legal challenges related to workplace alcohol policies and the use of breathalyser tests. It suggests that a positive test result alone may not always be sufficient grounds for dismissal, particularly if the employee can provide alternative explanations or challenge the accuracy of the test. Scheepers vs Spar Eastern Cape DC (CCMA), Similarly to a matter we reported previously on, namely
To mitigate your risk, we propose that employers look at the following solutions when reviewing their policies:
- Set thresholds for specific drugs or alcohol – for example, thresholds should be set for Cannabis testing by Urine at 50ng/ml. Alcohol, depending on the nature of the industry, could be at zero tolerance, alternatively at 0.10 mg/L BrAC or in industries that do not relate to driving, machinery use or which are deemed as low-risk industries, a level of 0.24 mg/L BrAC. This is to demonstrate impairment if above the set thresholds.
- Use supporting tests in conjunction with your urine and blood, such as an Alco / Drug sensory test – Slurred Speech, Red Eyes, Incoherent speech, Dilated Pupils and so on.
- The policy should fit in terms of the industry you operate in, categorised between High to Low-Risk industries. You must show that the employee’s work was adversely affected or that the Employee created an unsafe working environment.
A one size fits all approach is not recommended and employers are to review their Drug & Alcohol Policies in line with the above recomendations.
In light of the developments requiring additional proof such as observing physical signs of intoxication, please click on the link below to download our Alco Sensory Report at no cost to you.