From the desk of: Neo Nkobo (Advisory Industrial Relations Specialist)
It’s accepted practice for employers to subject employees to drug tests (marijuana or other) for varying operational reasons. Whether it be for inherent requirements of a particular position or for health and safety purposes within a particular workplace and in certain instances to determine an employee’s capacity to continue in employment.
For the employee, testing positive for banned substances will inevitably lead to internal processes being initiated which may lead to termination of the employment contract. The prohibition against the use and possession of mind altering substances in the work place is both reasonable and lawful. It prevents the employee from being a health and safety hazard not only to himself but to colleagues and third parties as well. Moreover the use and possession of such substances is in itself a criminal offence. With this in mind, most organisations adhere to strict policies where if an employee tests positive; is found in possession of; or is deemed to be under the influence of such substances they will be faced with possible dismissal.
Recently the Western Cape High court passed down a landmark judgement which will force employers to reconsider their internal policies and processes. In Gareth Prince v Minister of Justice and Constitutional Development and Others the court found that the legislative framework criminalising the use and possession of marijuana by adults in the privacy for their own homes was inconsistent with the constitution.
The court’s rationale centred around the fact that the burden that marijuana use imposes on society is “negligible” or “very, very small” compared to the costs imposed by comparable conduct that society tolerates (i.e., alcohol and tobacco use). The prohibition of simple possession of marijuana sought to prevent a low quantum of harm to society at a very high cost (criminalisation). The court acknowledged and emphasised that an adult individual living in a democracy has the right to engage in acts of self-endangerment and that the law will only interfere with such right if the harm is non-trivial or crosses a certain threshold. In conclusion, the court held that the legislative framework governing marijuana use unjustly limited the right to privacy of those who use small quantities of marijuana for personal consumption in the privacy of their own home.
On first sight of the judgement one would ask how this affects the workplace given the precision of the judgement’s application to the decriminalisation of “private home” use of marijuana.
The nature of marijuana is such that if occasionally used the trace elements remain in the body for up to 10 days. If regularly used this increases to 45 days, and if used constantly, 90 days. The physical or incapacitating effects however last for only 3 to 4 hours after use.
This means that an employee may test positive for marijuana and not be under the influence of the substance at the time of testing.
The practical implications of the judgement is that in terms of the workplace an employer can no longer have a zero tolerance policy towards marijuana. An employee can no longer be found guilty of an offence by simply testing positive for marijuana. The employee may now raise a defence of private use in line with the court’s decision. Employers will now have to prove that the employee was under the influence of the substance to such an extent they were rendered a safety hazard or were unable to perform their ordinary duties.
Given the judgement’s limited scope of application, the prohibition on the use and possession of Marijuana on company property will still attract culpability.
The court in its order suspended the declaration of invalidity for two years to allow the legislature to remedy the unconstitutionality of the current legal framework governing the private use of marijuana. It is recommended that employers review their policies and procedures in light of these developments in common law, so as to avoid adverse findings in the CCMA relating to Marijuana related dismissals.
Neo Nkobo (Advisory Industrial Relations Specialist) Labournet Johannesburg