Zero Tolerance for Drug Use Confirmed by CCMA – Adri Louw

Reported recently by the CCMA is an arbitration award issued 24 Septemeber 2018, which addresses the issue of cannabis use in the workplace after the landmark Constitutional Court case of Prince v Minister of Justice and Constitutional Development and others delivered on 18 September 2018.

 The case of Mthembu and others v NCT Durban Wood Chips involves three employees who had been dismissed from their employ after having been found guilty of being under the influence of cannabis whilst at work. The respondent conducts business in the wood and chip industry, and the working environment is fraught with various safety hazards for its employees. The three employees in question were also in positions where their work exposed them to significant risk. In an attempt to prevent injury and fatalities in the workplace, and also in adherence with the requirements of the Occupational Health and Safety Act, the employer had thus implemented a zero-tolerance policy within the workplace regarding being under the influence of alcohol or narcotic substances. The employees had each signed for this policy, had admitted to bearing knowledge of it, and confirmed that the policy had been discussed in toolbox talks.

 On the day in question, employees were tested randomly via urine sample for being under the influence of cannabis. These three employees tested positive, and the results were confirmed by further testing in a laboratory.  They also admitted to having cannabis in their systems. The employees were subjected to a disciplinary hearing for being under the influence of cannabis, found guilty, and dismissed.

 In the award, the commissioner took into account the recent judgement in the Prince matter relating to cannabis use at home, but the commissioner also reiterated that this judgement was limited to private use at home, and did not affect the employer’s right to implement policies preventing employees from working whilst under the influence. The commissioner ruled that the zero-tolerance policy was justified given the highly hazardous environment of the employer’s workplace in general, as well as giving consideration to the specific nature of the work performed by each employee. The policy served to protect employees from harm, and could be considered lawful and reasonable.

 In light of the above, the commissioner ruled that the dismissals were both substantively and procedurally fair.

 In conclusion, the Prince case allows for private cannabis use at home, but this does not give employees free reign to present themselves for work whilst under the influence of mind altering substances. The employer is well within their right to implement and enforce policies preventing such behaviour, in order to safeguard their employees and the workplace, and in order to comply with Occupational Health and Safety legislation.

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