Pierre de Vos, Constitutionally Speaking – 16 May 2019
The ruling handed down last year by South Africa’s Constitutional Court that it was unconstitutional to criminalise the private cultivation and use of cannabis (dagga), appropriately left it to Parliament to pass legislation further to regulate the matter. Meanwhile it is now legal to cultivate and use cannabis in private – although the legislature must still define what would be considered a “private” space. However, recently the Commission for Conciliation, Mediation and Arbitration (CCMA) upheld the dismissal of several employees who tested positive for cannabis. I believe the CCMA got it wrong, primarily because it did not understand how cannabis testing works and what is being tested.
In 2017, after an employee’s urine sample tested positive for traces of dagga, the management of NCT Durban Wood Chips ordered that a similar test be done on all employees. Four employees eventually tested positive for having traces of cannabis in their system and were dismissed. Three of the employees challenged their dismissal at the CCMA, but the CCMA held in Mthembu and others / NCT Durban Wood Chips  4 BALR 369 (CCMA) that the dismissal was fair – even though use of cannabis for private purposes was no longer unlawful.
I suspect the CCMA decision was wrong. The CCMA relied on two factors to justify its decision. First, it noted that the company had adopted a substance abuse policy in 2016 and that all employees had been made aware of this policy. The CCMA described the policy as follows:
It states that no one under the influence of drugs will be allowed on the premises. The policy further states that the respondent has a zero-tolerance approach to substance abuse. Paragraph 4 states that the possession, sale or use of illegal drugs is prohibited. It is immaterial that they use the Cannabis outside of the premises. Their policy is zero tolerance.
According to the CCMA this meant that employees had to ensure that when they used dagga in private “it must not result in them reporting for work under the influence thereof.” This, said the CCMA, “is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”.
Second, the CCMA pointed out that this particular workplace was dangerous as the employees worked in an environment where dangerous machinery was being operated. It would become a problem if employees were permitted to work on the dangerous work floor while under the influence of drugs or alcohol.
Because of the high degree of safety required of companies with heavy machinery and generally dangerous equipment, it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances. It is not disputed that it is an intoxicating substance and the court seems to accept this among other considerations and therefore limits its use to private use.
The applicants were therefore dismissed because they were found guilty of being “under the influence of intoxicating substances whilst on duty’, something that created a risk for everyone at the company.
In determining whether a dismissal was fair the CCMA is required to consider: (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and (b) if a rule or standard was contravened, whether or not (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and (iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
The pivotal questions here was whether the rule that prohibits working under the influence of either alcohol or cannabis was reasonable and valid and whether the rule applied to the facts of the case. The CCMA held that it did:
Because of the high degree of safety required of companies with heavy machinery and generally dangerous equipment, it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances… Given the factual matrix of the present matter it would be reasonable to expect the applicants not to present themselves to work under the influence of cannabis because of the inherent dangers present at the workplace.
As the CCMA pointed out, a rule prohibiting employees from coming to work hoog gerook on dagga would be no different from a rule prohibiting an employee from arriving at work roaring drunk. But, the comparison between alcohol and cannabis cannot be taken too far.
This is because alcohol leaves the blood within a few hours after ingestion. As a person sobers up, traces of alcohol disappear. When a person tests positive for alcohol in the blood this is a good indication that the person was in fact intoxicated at the time the test was done.
The urine test used to detect traces of dagga in somebody’s body differs from the blood test for alcohol because traces of dagga stays in the body long after a person is no longer experiencing any effects from the dagga.
While detection windows depend on many factors – including on how often the person uses dagga and on his or her body weight – urine tests can detect dagga in the urine for approximately 3–30 days after use. This means that is more than likely that a person testing positive for having traces of cannabis in their system, will not be under the influence of cannabis at all.
Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired. In any event, the employer in this case used a urine test which provides no proof of whether the employee was intoxicated at the time when the test was taken.
The CCMA ruling suggests that the Commissioner was not aware of the limitations of urine tests used to detect traces of dagga in the body. The Commissioner found that the “applicants were tested through a urine test and found to be under the influence of cannabis which was admitted by the applicants”. This must be wrong as the test could not have found that the employees were under the influence of cannabis at the time of testing. It is therefore also unclear whether the employees admitted to being under the influence or admitting that they had used cannabis previously and that there were therefore traces of cannabis in their urine.
The correct legal position must be that an employee cannot be dismissed for being under the influence of dagga at work merely because a urine test detected traces of cannabis in his or her urine. Unless the employer can prove that the employee was under the influence of dagga while at work (something that cannot be done by using a urine test), it would normally not be legally permitted to dismiss that employee for substance abuse or for being under the influence of dagga at work.
Some jobs may require a degree of attentiveness that may preclude any use of cannabis in the few days before an employee has to work. Flying a passenger plane might be such a job. In such cases it may be reasonable for an employer to adopt a rule that testing positive for traces of cannabis in your urine is a dismissible offence in all cases.
But for most jobs it would not be reasonable to adopt such a rule. Just as it would not be reasonable to prohibit an employee from drinking any alcohol in the days or weeks before they come to work, it would not be reasonable for most employers to prohibit employees from using cannabis in the days or weeks before they come to work.
It is for this reason that I suspect the dismissed employees from NCT Durban Wood Chips were hard done by.