BRENTWOOD

2022-06-30

Dismissed for dagga is NOT unfair discrimination

Barloworld has dismissed an employee of 13 years’ service, with a clean disciplinary record for repeatedly testing positive for cannabis. She claimed to use cannabis oil for medicinal reasons and smoked it daily recreationally for “spiritual” reasons, insomnia, and anxiety”. She claimed at the Labour Court that the dismissal is “unfair discrimination” and an automatically unfair dismissal. She wanted to be reinstated.

The Labour Court found that it was neither discrimination nor an automatically unfair dismissal and dismissed her matter.

When she tested positive, she was not stoned and was able to continue with her normal duties, she was also not in possession of cannabis at the time. The judge noted, “It also does not matter that (she) was not impaired when she tested positive. She has to comply with the rules.”

Barloworld had a zero-tolerance policy towards alcohol and drugs, which she was aware of, and the company required employees to undergo regular tests. Initially she was given leave to clean up and would be tested every 7 days until she tested negative. She continued to fail the tests. She claimed the policy was unfair and discriminatory, but the Court found it to was applied consistently by Barloworld, and to treat her differently would be to create a precedent which would place an unfair burden on the company. Further Barloworld was entitled to a zero-tolerance policy because of the potential dangers of the workplace.

In the hearing she refused to give up her use of cannabis and the chairperson decided that a final written warning would be not have an effect on her misconduct and dismissed her.

The court addressed the decriminalisation of cannabis when she claimed that the company has to understand that cannabis takes weeks to clear form her system, whereas alcohol takes hours. The Judge stated “Indeed, everyone is entitled to use cannabis in their own space and for recreational purposes. Similarly everyone is entitled to consume alcohol in their own private space and time. This however does not mean that if an employee who consumed alcohol the previous night happens to test positive, the (company) would have to take cognisance of the fact that such alcohol was consumed in the employee’s private space and time.”

Bernadette Enever V Barloworld Equipment, A division of Barloworld South Africa (PTY) LTD LC JS633/20 and JS926/20 (2022)