“It is declared that the [employer]’s Alcohol and Substance Abuse Policy is irrational and violates the right to privacy in section 14 of the Constitution, to the extent that it prohibits office-based employees that do not work with or within an environment that has, heavy, dangerous and similar equipment, from consuming cannabis in the privacy of their homes.” (Court order, below)

A recent Labour Appeal Court (LAC) decision highlights the complexities of workplace policies regarding cannabis use and provides guidelines to employers and their employees on the intersection of individual rights and workplace policies.

Unfairly dismissed for off-duty cannabis use and awarded R1m

• Under medical guidance, an office worker had turned to cannabis to manage severe anxiety. She smoked a nightly “joint” and daily used cannabis oil and the like, but only after hours and over weekends.

• She was dismissed after pleading guilty at a disciplinary hearing to having tested positive during a routine medical check at work, in contravention of her employer’s zero tolerance policy on alcohol and substance abuse.

• On appeal from the Labour Court, the LAC considered the legality and fairness of the employer’s zero-tolerance policy towards cannabis use, and whether it infringed upon the employee’s rights to privacy and dignity.

• Importantly, the employee was an office worker, not required to drive, to operate heavy machinery, or to perform any duty where impairment from cannabis could have caused risk. Nor was there any evidence of intoxication or that her ability to perform her duties had been impaired, nor that she had caused an unsafe working environment.

• The Court declared the employer’s policy irrational, overbroad and an infringement of the employee’s right to privacy. Her treatment as someone who was intoxicated when in fact she was not, amounted to “unfair discrimination because it singles out cannabis users compared to alcohol users, for what they do at home, even in situations where their conduct carries no risk for the employer.”

• The dismissal was accordingly automatically unfair and amounted to unfair discrimination. The LAC ordered the employer to pay the employee 24 months’ compensation (a total of some R1.037m).

Employers: The balancing act with your workplace policies

The outcome here serves as a strong reminder to carefully consider the implications of all your workplace policies, particularly regarding sensitive issues such as cannabis use.

You must balance legitimate safety concerns at work with respect for your employees’ rights to privacy and autonomy. Adopt nuanced approaches that take into account your workplace environment, employee duties, individual circumstances and evolving societal norms.

Note that the new “Cannabis for Private Purposes Act”, which has just been signed into law, is unlikely to have any bearing on the effect and import of this judgment.

In conclusion, you need to stay informed and adapt to the evolving legal landscape surrounding cannabis use, so ask us to review and update your workplace policies accordingly.