By Johan Botes

As John Mayer once sang, “Who says I can’t get stoned... me in my house alone?" A recent decision by the Labour Appeal Court (LAC) in South Africa clarifies for employers when their employees’ cannabis use at home becomes applicable to their roles at work.

In Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (April 23, 2024), the LAC ordered the employer to reinstate and pay more than R1 million in backpay to an employee dismissed in 2020 for repeatedly testing positive for cannabis use.

The judgment provides guidance to employers seeking to understand when they may require employees to be free of intoxicating substances (reflecting on the private use of both alcohol and cannabis).

The court confirmed that there must be a rational basis between the employer’s stated operational need and its policy governing employee conduct impacting the business need. In relation to the position of the dismissed employee, the court held that there was “… no rational link between [the employer’s] zero-tolerance policy against personal cannabis use by all its employees in the privacy of their homes and the maintenance of safety in its workplace.”

The court further clarified that this does not mean that there can never be a valid link between workplace safety and a prohibition on employees testing positive for cannabis. In certain dangerous roles, it may well be justifiable to demand that employees not smoke cannabis at all (or test positive for traces of the substance in their system).

However, when considering the manner in which a zero-tolerance policy differentiates between employees who consume alcohol after hours when compared to those partaking in cannabis, the court confirmed that it would require exceptional circumstances to show that the differentiation is valid and justifiable.

The court considered the latitude enjoyed by employees who partake in alcohol. Such employees, even having consumed a lawful intoxicating substance outside the workplace, are able to attend work the next day and return results confirming that they have no alcohol in their bloodstream.

Cannabis users, on the other hand, will test positive for cannabis for a longer period. This may be so even when they are no longer intoxicated or under the influence of cannabis.

The court reflected that the employee “smokes her joint at home, sobers up, and then in the morning goes to work where she does her office job ably and competently without posing a safety risk to herself or her fellow employees.”

It does not impair her ability to perform her role. This is distinguishable from an employee who arrives at work under the influence of alcohol and then has to perform dangerous work, potentially even endangering the safety of others.

The judgment reiterates the requirement of rationality where employers seek to limit an employee’s private conduct. This also aligns with the recent judgment on the relevance of a criminal conviction to the suitability of an applicant applying for employment decades later.

It echoes, rather than contradicts, the line of decisions on the employer’s right to take action against employees whose private conduct negatively impacts the employment relationship. The test is the impact of such private conduct on continued employment.

This is an objective test that considers the position of the employer and employee and cannot be based on irrational fears, trepidations, or discredited theories. Employers may legitimately take action against employees where the private conduct of the employee causes the employer harm, poses a risk to workplace safety, causes harm to the business of the employer, or breaks down the relationship of trust between employer and employee.

However, there must be a valid and rational connection between the legitimate needs of the business and the limitation of the employee’s rights to warrant the intrusion into the employee’s private life.

Johan Botes, Partner, Head of Employment, Baker McKenzie Johannesburg

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