BACKGROUND AND SUMMARY
|The Commission for Conciliation, Mediation and Arbitration (the “CCMA”) recently handed down judgment in terms of a section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (the “Act”). The question of law before the Arbitrator of the Court was whether or not the dismissal of the Applicants was substantively fair.
The Respondent carries on its principle business in the wood and chip industry. As such, the work carried out by the employees is dangerous, as it includes the operating of heavy machinery; handling large logs of wood weighing between 30 (thirty) to 100 (one hundred) kilograms, which may cause fatalities. In addition hereto, such dangerous machinery are being driven around the business premises throughout the day.
In light of the dangerous environment, as set forth above, the Respondent has safety rules in place to protect the employees and the Respondent from liability. One of the safety rules in place includes a Substance Abuse Policy (the “Policy”) advocating for a “zero tolerance” approach towards substance abuse by the employees. The Policy was signed by all employees at the commencement of their employment with the Respondent. The Policy explicitly states that, “possession, sale or use of illegal drugs is not consistent with the companies needs to operate in a safe and efficient fashion, therefore, no employee of the company may use or possess unlawful drugs at any time”. Additionally, the Respondent has conducted “tool box talks” with its employees wherein they are informed of the Respondent’s approach towards substance abuse as set forth herein.
As such, in April 2017, all employees underwent a drug test by supplying a urine sample. All the employees tested negative for drugs. In the middle of 2017, after one of the employees was suspected of substance abuse, a second drug test was conducted on all employees, during which the Applicants tested positive for drugs, namely cannabis. The urine samples of the Applicants were sent to a certified laboratory for further testing, wherein the aforementioned positive results were confirmed. As such, the Applicants were called to a disciplinary hearing during which they admitted to having smoked cannabis, they however argued that they had done so outside of the workplace. The Applicants were found guilty under the charge of being “under the influence of intoxicating substance whilst on duty” and were subsequently dismissed. The Applicants referred the matter to arbitration, challenging the fairness of their dismissal.
The Arbitrator, in determining whether the dismissal was fair considered the whether or not the employees contravened a rule or standard regulating conduct in, or of relevance to, the work place as well as if a rule or standard was contravened and in doing so the Arbritrator considered if the rule was a valid or reasonable rule or standard; if the employee was aware, or could reasonably be expected to have been aware, of the rule or the standard; if the rule or standard has been consistently applied by the employer; and finally if the dismissal was an appropriate sanction for the contravention of the rule or standard.
The Arbitrator found that in light of the dangerous working environment, the Policy implemented by the Respondent which, inter alia, prohibits the consumption of cannabis at the workplace and attending work under the influence of same was reasonable. Furthermore, the Arbitrator found that the Applicants were aware of the aforementioned Policy and safety requirements, flowing therefrom.
The Arbitrator, furthermore, considered the fact the Constitutional Court had recently decriminalised the private use of cannabis, and held that, this did not place employees in a position where they can attend at the workplace under the influence of cannabis. As such, as is materially the same with alcohol consumption, where the use of cannabis impairs an employee’s ability to work in line with the standard required by the employer, the employer is entitled to take disciplinary action against the employee.
The CCMA held that the Applicants conduct, i.e. being under the influence of cannabis whilst on duty, constituted a blatant and conscious disregard for the Respondent’s safety rules, more specifically the Policy. The Applicants were, at the time of their dismissal, well-aware of the Policy implemented by the Respondent and the consequences that would flow from a breach thereof, namely, immediate dismissal if they were to test positive for substance abuse. In light of what has been set forth above and due to the Applicants reluctance to stop smoking cannabis at the door of the workplace, the Arbitrator saw no possibility of counselling or training assisting or remedying the Applicants in the future.
Accordingly, the CCMA found the dismissal of the Applicants to be substantively fair.
The consequence of the Constitutional Court having decriminalised the private use of cannabis has far reaching effects, and one such example is the effect that it has had in the workplace, creating a new and developing area of the labour law in South Africa. This case illustrates, that although the private use of cannabis has been decriminalised, employees still run the risk of being disciplined and dismissed if found under the influence of cannabis whilst on duty.
Written by Courtney Altmuner and supervised by Jeannique Booysen