Terminations caused by the use of cannabis at the workplace or by being under the influence of cannabis
Respondent is a business owner in the wood and chip industry.
Consequently, the employees’ work is dangerous. Since they operate heavy machines, drive heavy vehicles and handle logs weighing thirty (30) to one hundred (100) kilograms.
These machines may cause fatalities if not handled properly.
In addition, dangerous machinery is being driven around the business premises all day long. As a result, safety rules are in place to protect employees.
Substance abuse is one of the safety rules, which has zero tolerance for substance use at work.
Employees sign the substance abuse policy upon assuming employment with the Respondent (employer).
The company policy states that:
“Possession, sale or use of illegal drugs is not consistent with the companies needs to operate safely and efficiently. Therefore, no employee of the company may use or possess unlawful drugs at any time”.
Despite the employer’s repeated reminder of the policy and the repercussions, if any employee tests positive for any substance in the workplace, several employees tested positive for the use of cannabis.
In light of their daily activities and operations, they were dismissed.
For the first time, all staff members underwent a drug test. They all tested negative for cannabis use.
During the second drug test, one of the employees was suspected of substance abuse, and others were found to be under the influence of cannabis.
After sending the samples to a laboratory to retest, the results again came back positive.
Due to the substance of being under the influence of cannabis, the applicants were subjected to a disciplinary hearing where they were found guilty.
There was disagreement between the applicants and the sanction (summary dismissal).
Referred to the CCMA
Due to their disagreement with the charge, they referred it to the CCMA for arbitration. They only agreed to smoke outside the workplace, outside of working hours. Nevertheless, they were still under the influence of the substance. To determine whether the dismissals of the employees were substantively fair, the Commissioner was required.
According to the Commissioner, to determine whether a dismissal was substantively fair, it was necessary to determine whether the applicants had broken any rules or standards of conduct concerning working conditions or workplace policies, and if so, whether the rule was reasonable and valid; and if so, whether the applicants understood the rule.
As a rule, employees within such industries are required to acknowledge receipt of safety rules and regulations that protect their lives.
Additionally, the Commissioner was required to determine if the rule had been applied consistently before and if the sanction for contravening the rule was reasonable.
In light of the unsafe working environment, the Commissioner stated that the Respondent’s policy, which, inter alia, prohibited the consumption of cannabis at work and/or working while under the influence, should have been known to the applicants who signed the policy upon commencement of employment.
It was evident that the applicants did not respect the employer’s safety policy and rules which are designed to safeguard the lives and limbs of employees and individuals who understand they will perform “heavy duties” in a safe environment.
According to the Commissioner, the Constitutional Court decriminalized the use of cannabis for private purposes; however, employees may not attend work under the influence of cannabis. Employers cannot limit what their employees do during their free time.
They should, however, have complied with the safety standards since it is for their protection, and the dismissal was substantively fair.
