Recent developments in our courts, particularly the case of the Minister of Justice and Constitutional Development v Prince, have made provisions for the decriminalisation of possession, use or cultivation of cannabis by adults in their private spaces. This has made for a tricky situation for employers where the use of an intoxicating substance has suddenly become a norm.
In the case of Mthembu and Others v NCT Durban Wood Chips, the CCMA held employers are still entitled to discipline employees who use cannabis or are under its influence during working hours.
Cannabis can be detected in the user’s system for up to three weeks, depending on the method of testing and the frequency of the use by the employee. Hence, it can be difficult for an employer to prove that an employee is actually under the influence of cannabis while on duty or at the workplace through a simple ‘’drug’’ test. It is easy for an employee to allege that his positive test for cannabis is because of his use thereof in his personal time and space. So how does an employer establish that an employee is under the influence at the time and while on duty?
It is first important to remember that an employer does not have to prove that an employee is guilty of misconduct on the basis of beyond reasonable doubt, but rather on a balance of probability. If an employer suspects an employee of being under the influence of cannabis while on duty, the employer should subject the employee to a drug test or screening specific to or including cannabis detection. However, it is important to note that the testing needs to be done in accordance with Section 7 of the Employment Equity Act. In a nutshell, this means that the testing must be voluntary, confidential and/or in terms of a company policy implemented and acknowledged by the employee.
Is the suspicion accompanied by the positive testing enough to prove that the employee was under the influence of cannabis while on duty on a balance of probability? The simple answer to this is no. All the employer has established is that the employee has cannabis in their system. The employer and a witness should complete an observational report to this effect as soon as possible, and on the same day after an employee is suspected to be under the influence of cannabis The observational report should speak to the employee’s state at the time of the suspicion, namely; if the employee’s eyes are red or watery, if the employee’s hands, breath, or clothing smells like cannabis, if the employee’s behaviour seems out of character, if the employee’s speech seems impaired and/or if the employee was found in possession of cannabis or cannabis-related paraphernalia. The observational report should contain the employee’s details, the date of the observation, the signature of the employee, and the employer and the witness. The witness to the observational report should also be available and willing to testify to the report and in support of the employer’s case in a disciplinary hearing. Although each case is subject to its merits with the positive testing, it should be enough to establish that the employee was under the influence of cannabis while on duty on a balance of probability.
It is, however, noteworthy that if it is established at any stage or in a disciplinary hearing that the employee has an addiction or dependency issue with cannabis, the employer should abandon any disciplinary action and rather pursue ill-health proceedings in an attempt to assist the employee with such a dependency or addiction.
Need assistance with disciplinary actions? Contact your nearest SEESA office, alternatively leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Thomas Dreyer started his career at SEESA in 2021. He is a Labour & CP Legal Advisor at SEESA East London branch. Thomas obtained his LLB degree from the University of Fort Hare and is an Admitted Attorney in the High Court of South Africa. Prior to joining SEESA, he practiced as an attorney specialising in Civil Litigation.
Resources:
- Employment Equity Act 55 of 1998, As Amended;
- Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA);
- Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18 September 2018)