12 August 2024
On May 28, 2024, President Ramaphosa signed the Cannabis for Private Purposes Act (CFPPA) into law. This act intends to regulate the cultivation, possession, and personal use of cannabis by adults in privacy.
The CFPPA removes cannabis from the Drugs and Drug Trafficking Act and makes it an offence to smoke cannabis in a public place, in a vehicle on a public road and the presence of non-consenting adults as well as children.
Further, any person convicted of an offence related to cannabis, as per Section 8 of the CFPPA, will automatically have their criminal record containing their conviction and sentence expunged.
What this means for employers
Whilst the CFPPA provides clarity as to where one can make use of cannabis as well as the amount of cannabis one can have in their possession, it also sets out the relevant offences and penalties if the CFPPA is not adhered to.
Although the CFPPA itself does not provide clarity on how to regulate the discipline of employees found to be under the influence of cannabis within the workplace, we are led by the below court cases that set out when employers have grounds to discipline staff due to cannabis infringements and when employees’ use of cannabis outside of the workplace has no bearing on the employer. Therefore, no disciplinary action can be taken.
Case study - Marasi v Petroleum Oil and Gas Corporation of South Africa
In the case of Marasi v Petroleum Oil and Gas Corporation of South Africa (C219/2020) [2023] ZALCCT 34 (27 June 2023), the court determined whether PetroSA’s Drug and Alcohol Policy testing requirement was an inherent requirement of the job. Considering the nature of PetroSA’s working environment (which includes the exploration of oil and gas), as well as the health and safety requirements regulated by law, the Court found that testing negative for substances such as cannabis was necessary for all employees in a hazardous work environment, was aligned with health and safety legislation of South Africa and did not discriminate against the employee. A zero-tolerance policy is enforceable in instances where the workplace is inherently dangerous.
The above judgement significantly differs from that of Enever v Barloworld Equipment South Africa, a Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC (23 April 2024), in which the Labour Appeal Court submitted that the employee in this case did not operate in an environment with heavy machinery.
Thus, the Drug and Alcohol Policy was overbroad. Whilst Barloworld argued that they had a generally dangerous working environment and that it was an inherent requirement of the job not to make use of cannabis, the court found that this standard could not be applied to employees who work in an office environment away from any health and safety risk. A zero-tolerance policy may not be enforceable when the workplace is not considered inherently dangerous, and the employee is not considered intoxicated.
Case study - NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd
In NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022), two employees were dismissed after they tested positive for cannabis due to a tip being received by management that the said employees were smoking cannabis in the workplace.
Prinsloo J confirmed that dismissal was fair and that the court does not protect employees against disciplinary action should they contravene company policies and procedures, especially in dangerous working environments. This case demonstrates that notwithstanding the decriminalisation of the private use, possession or cultivation of cannabis, employees may be dismissed for testing positive for cannabis while in a workplace that is considered inherently dangerous.
Employers are still within their rights to have a Drug and Alcohol Policy that indicates no person is to be under the influence whilst on duty. However, the above case law provides us with guidance as to what steps and procedures can be taken in different circumstances. Employers need to consider the nature of the employee’s duties and the environment in which they work before considering disciplinary steps. A zero-tolerance policy can be enforced if there is a direct correlation to preserving workplace safety.
If you have any questions or need assistance disciplining employees found under the influence of cannabis in the workplace, please contact Invictus at 086 173 7263 or email us at admin@invictusgroup.co.za.
