Drugs in the workplace – positive or under the influence?

Since the Constitutional Court decriminalized the use and cultivation of cannabis for personal on 18 September 2018 many traditional thoughts practices, rules and policies in workplaces have been reconsidered or challenged.

The year end is almost upon us and with that the challenges that the silly season normally provides, one of which may be the use of cannabis by employees.

The CCMA in the matter of Rankeng vs Signature Cosmetics and Fragrance (Pty) Ltd was charged with deciding on the fairness of a dismissal of an employee who tested positive for cannabis.

The Employee was employed in the capacity of a picker. He was requested to undertake a drug test. The test returned a positive result for cannabis in the Employee’s system. He admitted the use of cannabis privately prior to arriving at work. The Employee was permitted to continue working during his shift.

The Employee was charged with being under the influence of cannabis and later dismissed after being found guilty.

In the arbitration award the Commissioner emphasized that an employer who alleges that an employee is under the influence is required to do more than obtaining a test which indicates a positive trace of the substance in an individual. On the other hand testing positive for illegal narcotics may on its own justify a different charge such as a breach of a drugs policy in which case the Employer is not required to prove that the Employee is under the influence.

Circumstantial factors such as signs of mental or physical impairment can be relied upon in to make an assessment in a similar manner as employees are assessed for being under the influence of alcohol.

Ultimately the CCMA decided that the dismissal of the Employee was unfair and reinstated him into his previous position.

Had this Employee been an employee holding a high risk position such as a pilot, train or bus driver it is possible that the outcome may have been different.

It is impossible to determine a single rule which will be applicable to all employment relationships as each workplace and relationship are unique. Circumstances which may be accepted or sanctioned with a low level sanction in one workplace may justifiably be highly unacceptable in another. Each matter must ultimately be determined on its own merits and circumstances.

A free copy of the CCMA arbitration award can be downloaded here.