It is not a criminal offence for an adult to use or to be in possession of cannabis in a private place – BUT is the use of cannabis a ground for dismissal?

In a landmark judgment by the Constitutional Court the use and possession of cannabis in a private place by an adult was decriminalised. In recent matters heard by Justice Prinsloo in the Labour Court, employees have argued that there is presently no provision which prohibits the use of cannibals or even testing positive for cannabis in the workplace.

So, what is the position with regards to cannabis in the workplace?

Cannabis continues to be regarded as a harmful drug which is mind-altering. Most employers stand to concur with the abovementioned statement. Employers have the duty to provide a safe working environment, protect employees and ensure that no negative consequences may flow from someone who is working under the influence of alcohol or drugs. Furthermore, employees under the influence of alcohol or drugs may not be able to perform their duties to the required standards.

It has been confirmed that, employers are not prevented from taking disciplinary actions against employees who test positive or make use of cannabis at their place of work. The Labour Court in 2023 has confirmed that the provision of private use of cannabis does not afford any protection to employees who breach employment policies in relation to the use of drugs.  A 2023 Labour Appeal Court case held that, employers are entitled to adopt and formulate policies and codes of conduct for their employees.

The test required to consider whether disciplinary action can be taken against those who testing positive for the use of cannabis: is firstly, was the employee aware of the rule? Has the rule been applied consistently throughout the organisation and lastly, is the rule justifiable in the respective circumstance(s). Should the abovementioned be answered in the affirmative, the dismissal of any employee may be said to be substantively fair.

It is therefore imperative that Employers ensure that company policies and codes of conduct are updated to ensure that appropriate action may be taken if an employee tests positive for cannabis in the workplace.

Contact our employment law attorneys for assistance in updating your policies and codes of conduct.

Article by:
Lineo Kekana.
Candidate Attorney
HR and Labour Law Dept

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