Cannabis in the workplace
In the case of Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12 (23 April 2024), an employee of Barloworld Equipment South Africa, Ms. Enever, was dismissed after testing positive for cannabis. The company's zero-tolerance policy against the use of cannabis, led to her termination. Enever challenged her dismissal, arguing that her right to privacy was infringed upon since the policy prohibited her from using cannabis outside of work hours.
The Labour Appeal Court found in favour of Enever, emphasizing that there was no evidence to show she was intoxicated or unable to perform her duties at work. Unlike alcohol, there is no straightforward way to measure current intoxication levels for cannabis. The Court held that the company's zero-tolerance policy did not have a rational link to maintaining workplace safety, especially since Enever’s job did not involve operating heavy machinery.
Judge’s Key Points:
Lack of Evidence for Intoxication: The Court noted the challenge in proving actual intoxication from cannabis use as it is a matter of degree. The employee would only be considered "under the influence" if she was unable to perform her tasks.
Privacy Rights: The Court highlighted the invasion of privacy by the zero-tolerance policy against cannabis use in employees' private lives.
Rational Link to Safety: The Court found no rational link between the policy and workplace safety, particularly since Enever's role did not involve operating heavy equipment.
Evidence Requirement: The decision suggested that legal requirements should still develop around the known symptoms of cannabis and their impact on job performance. The nature of the job determines the amount of evidence required to justify dismissal.
The Enever v Barloworld Equipment South Africa case presents several challenges for employers in South Africa:
Policy Adjustments
Employers with strict zero-tolerance policies for cannabis use may need to reconsider and revise these policies to ensure they are not infringing on employees' privacy rights.
Employers must find a balance between maintaining workplace safety and respecting employees' right to privacy. This involves crafting policies that are specific to the nature of the job and the actual risks involved.
Proving Intoxication:
Unlike alcohol, there is no straightforward way to measure current intoxication levels for cannabis. Employers will face challenges in establishing clear and reliable methods for determining if an employee is under the influence while at work.
The case underscores the need for more robust evidence to justify dismissals based on cannabis use. This includes considering test results, eyewitness accounts, and the specific duties associated with the employee's role.
Job-Specific Considerations:
Evaluate the specific duties of each role and determine the appropriate level of tolerance for cannabis use. Jobs involving heavy machinery or safety-critical tasks may warrant stricter policies compared to other roles.
Employers will need to assess whether an employee’s cannabis use affects their ability to perform tasks safely and efficiently, rather than relying solely on test results.
Legal and HR Implications:
Employers must stay informed about the evolving legal landscape regarding cannabis use and employment. This requires continuous monitoring of case law and adapting policies accordingly.
HR departments will need to educate managers and employees about the new legal standards and the implications for workplace policies. This includes training on recognizing signs of impairment and handling related issues appropriately.
Privacy Concerns:
The case highlights the importance of respecting employees' rights to privacy in their personal lives. Employers must ensure their policies do not overreach into employees' private activities unless there is a clear, justified link to workplace safety and performance.
Creating Fair Disciplinary Procedures:
Employers must establish fair and consistent disciplinary procedures for addressing suspected cannabis impairment. This includes clear guidelines on how to handle positive test results and ensuring that any disciplinary actions are proportionate to the evidence and the nature of the job.
Overall, the judgement made in Enever v Barloworld case requires employers in South Africa to take a more nuanced and evidence-based approach to managing cannabis use among employees, balancing safety concerns with respect for personal privacy and the specific demands of each job role and the difficulty in proving actual intoxication.
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