Can a dismissal due to the use of cannabis for medicinal purposes in contravention of a zero tolerance policy be deemed as discriminatory and automatically unfair?

Employers have been facing challenges from employees after the Cannabis for Private Purposes Bill was published.   Employees when being tested positive would for example attempt to argue that the use is for medicinal or recreational purposes, and the employer’s policies thereto are discriminatory in nature.

In a recent Labour Court judgement, the issue of discrimination of the employers “zero tolerance policy” regarding cannabis use and that a dismissal as a result may be deemed as automatically unfair, was considered.

In the matter of Bernadette Enever vs Barloworld South Africa (Pty) Ltd JS633/20 and JS926/20 the employee was charged and called to a disciplinary enquiry for repetitively testing positive for cannabis which was in breach of the employer’s Alcohol and Substance Abuse Policy. The employee stated that she suffered from severe and constant migraines and anxiety which affected her general well-being. She was prescribed medication by her general practitioner for pain and anxiety which proved to have side effects. After the Constitutional Court decriminalising the use of cannabis, the employee decided to gradually move away from consuming her medication to using cannabis oil and smoking cannabis in the evenings as an alternative, to achieve the same results. The employee was subsequently dismissed for repetitively testing positive for cannabis in contravention of the Employers “zero tolerance policy”.

The employee claimed that the employer unfairly discriminated against her in terms of the Employment Equity Act and that her dismissal was automatically unfair.

The Court noted that the employee only raised her issues when she was tested positive and further failed to approach the employer in order to disclose her condition so as to allow a common ground to be found on her medical issues. There was also no professional and validated medical proof to demonstrate that the cannabis was used in order to ease the pain and anxiety she was suffering from, so as to allow the Court to draw a distinction from medicinal versus recreational use.

The Court found that the fact that the employee was not impaired to perform her duties did not in itself pardon her from misconduct in terms of the employer’s policy. 

The employee’s dismissal was held to be fair, and that the employer’s policy was not discriminatory in nature.

In the writer’s opinion one should keep in mind that the employer has a legal obligation to ensure a safe working environment, and a part of that process to ensure a safe workplace is the formulation of policies such as the one referred to. 

The difficulty is how does an employer weigh up the legal requirement of a safe workplace and its policies as a tool thereto against an employee’s rights.  In conclusion this matter again demonstrates the importance of proper policy development, implementation and the consistent application thereof when dealing with issues of this nature and misconduct in general in the workplace.