Although the private use of cannabis is legal in South Africa, having the substance in your system can lead to severe punishments.
According to Silindokuhle Magagula and Tshepo Mofokeng from ENS Africa, the right to cannabis for cultural purposes and workplace testing policies is still debated.
The Labour Court (LC) would have to deal with the matter in Marasi v Petroleum Oil and Gas Corporation of South Africa.
The employer had a policy aimed at dealing with substance use by employees that could affect its operations – including an annual and ad hoc medical assessment to ensure that their staff was fit for duty.
The employee in the case wanted to join a traditional healer training programme and requested a transfer from Cape Town to Mossel Bay. The transfer was granted, and the employee had to undergo a medical assessment when he arrived in Mossel Bay.
The assessment found that the employee had high levels of cannabis in his system, which exceeded the limit in the policy.
Due to the presence of cannabis in the employee’s system, the employer stopped him from entering the workplace until more tests could be conducted. Further tests confirmed the existence of cannabis in his system, which was above the acceptable limit.
The employee was then declared unfit for duty and blocked from entering the premises until he proved a test that was either negative or below the permissible limit.
He argued that cannabis use was part of his training programme and lodged a complaint against his treatment.
Although the matter was resolved and the employee returned to work after a medical assessment showed that he abided by the employer’s policy, he said that his treatment included unfair discrimination based on culture, controverting the Employment Equity Act (EEA).
He also argued that the policy was outdated and conflicted with the Constitutional Court’s decision in Minister of Justice and Constitutional Development and Others v Prince, which legalised cannabis for personal use.
After denying the employee’s disputes, the employer brought the matter to the LC, which held that the policy did not discriminate between employees.
The policy affected all employees within the organisation, and there was no direct discrimination. However, the LC said that it could accept that there was indirect discrimination in the case.
The EEA recognises indirect discrimination, where, for example, a policy may seem non-discriminatory but, in practice, has a disproportionate impact on certain employees, and the impact is based on prohibited grounds for discrimination.
The LC said that the policy might indirectly discriminate against individuals who use cannabis for religious or cultural reasons, which, according to EEA, are protected grounds for discrimination.
Nevertheless, it said that it had to determine whether the indirect discrimination was unfair.
Section 6(2) of the EEA states that is not unfair discrimination to exclude, distinguish or prefer someone of the inherent requirements of the job. It said that testing negative for cannabis use was reasonable and a requirement for the job.
It thus ruled that there was no unfair discrimination.
It admitted that the employee had his dignity negatively impacted but emphasised that discrimination is not determined by individual feelings.
Although the use of cannabis is no longer illegal for private use, the LC said that the employer is still permitted to regulate its use if it can affect the employment environment.
For instance, drinking alcohol is not illegal, but employers are allowed to regulate its use in a work environment.
“This decision is of interest in that it is one of the rare occasions where indirect discrimination has been alleged and it illustrates the potential scope of the concept,” the experts said.
“Perhaps of more importance is the LC’s rejection of the notion that, because the private use of cannabis is no longer illegal, this prevents an employer from implementing rules regarding the use of cannabis in so far as it impacts the workplace.”