By Nicolette van Vuuren, Partner & Jamie Jacobs, Associate from Webber Wentzel

Considering the growing cannabis industry and the Government’s active investment in cannabis production in South Africa, particularly in the Eastern Cape (donned as South Africa’s primary cannabis production hub), it is apparent that cannabis has economic value to South Africa. This has necessitated the introduction of legislation and a regulatory framework that will ensure that cannabis production and cannabis use for private purposes is properly regulated. 

On 28 May 2024, President Ramaphosa signed the Cannabis for Private Purposes Bill, now referred to as the Cannabis for Private Purposes Act 7 of 2024 (Cannabis Act), into law. The Cannabis Act will create inroads for establishing a framework within which cannabis use for private purposes may be regulated, once it is implemented.

Furthermore, this enactment is significant as it may result in more individuals cultivating cannabis for their private use, within the confines of its provisions. Certain of these individuals may be employees who may work or perform their work whilst under the influence of cannabis in the workplace. The recent Labour Appeal Court (LAC) judgment of Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd is more significant now, as employees are likely to consume cannabis in the private spheres of their lives more freely. This may result in these employees being under the influence of cannabis in the workplace.

In Enever the LAC considered four issues raised by the employee, namely whether:

• the employer differentiated between her and other employees;
• there was a causal link between her dismissal and her consumption of cannabis;
• the employer's policies were unfairly discriminatory; and
• she suffered impairment to her dignity as a result of the policies.

The employee worked as an analyst at Barloworld, which operates in the equipment production sector. The employee's role was limited to desk work and required no interaction with any production lines. Barloworld's applicable policies prohibited the possession and consumption of alcohol and cannabis in the workplace and mandated routine or random drug testing. If an employee tested positive for a substance, they were required to remain at home for 7 days. Upon completing this period, they must test negative on another drug test before being allowed to return to work.

Following a random drug test, the employee tested positive for cannabis as she was a regular cannabis user. She was therefore sent home in accordance with the policy. The employee tested positive on a further four occasions and during the disciplinary enquiry into her alleged misconduct, the employee stated that she would continue to consume cannabis, culminating in her dismissal. She argued that the policy unfairly distinguishes between alcohol and cannabis users, employs a discriminatory testing approach, discriminates against her religious use of cannabis, and invades her right to privacy.

Given that cannabis can remain in a person's system for several months at a time, while alcohol can exit within a day, the employee argued that this permitted employees who tested positive for alcohol to return to work the next day whilst cannabis users would have to spend 7 days away from work. The LAC rejected this line of reasoning due to the fact that employees are sent home for the extent necessary to get "clean" as required by the policy. The LAC found that the zero-tolerance policy and the approach to testing for substances discriminated against the employee, with the consequence of infringing on her right to dignity. Whilst there may have been no malice in the testing policy, the randomised drug testing and the extent to which the employee had to stay at home to "get clean" did discriminate against the employee because her consumption did not result in her being intoxicated at work, but nonetheless caused her to be treated as such.

The employee also found success in her submission that the policy invaded her right to privacy, as the employer failed to establish that an employee's consumption of cannabis in her private capacity impaired her ability to perform within her role. The LAC also rejected the employer's assertion that its zero-tolerance policy sought to comply with the Occupational Health and Safety Act. The LAC found that when objectively considered, the actual effect of the employer's policy was that an employee cannot consume cannabis at all and applied the principle that overbroad, unwarranted, and unjustifiable invasions of the right to privacy are unconstitutional.

Whilst zero-tolerance policies may be treated with greater scrutiny in light of Enever, the LAC alsoemphasised that its stance may not be applicable in different scenarios. Put differently, the extent to which a workplace policy might infringe the right to consume cannabis in private will depend on, amongst other issues:

• the nature of the employee's role;
• the nature of the workplace; and
• the statutory requirements for safety.

The LAC found the dismissal to be automatically unfair based on unfair discrimination and awarded the employee 24 months’ remuneration as compensation.

Where a zero-tolerance stance has been adopted, employers should review the substance use policies in place to determine whether a zero-tolerance approach is justifiable in the context of that workplace with due consideration to the nature of the operations, and the inherent requirements of the roles executed in that workplace. Where it is determined that a zero-tolerance stance is not operationally justified, employers are still within their rights to regulate substance use by other means, including establishing cut-off limits.

Employers must also take heed of the fact that there is a growing need to have the appropriate substance use policies and procedures in place which address the use of cannabis, among other substances, bearing in mind the likely increase in the private use of cannabis in light of the enactment of the Cannabis Act. Where employers fail to take a balanced approach in addressing cannabis in the workplace, their employees may successfully claim unfair discrimination, as was done in Enever, resulting in compensation being ordered by the Labour Court.