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WHAT HAPPENS WHEN PRIVATE CANNABIS USE AT HOME LEADS TO A POSITIVE TEST AT WORK?

In the case of Enever v Barloworld Equipment South Africa (JA86/22) [2024] ZALAC (23 April 2024), the Labour Appeal Court (LAC) overturned the Labour Court's decision which had upheld the dismissal of Ms. Bernadette Enever, a category analyst at Barloworld Equipment South Africa, for testing positive for cannabis at work.


Background Facts

Ms. Enever was dismissed after testing positive for cannabis, despite the company's zero-tolerance policy towards drugs and alcohol.

She challenged the dismissal as unfair discrimination.


Labour Court Decision

The Labour Court ruled her dismissal was for misconduct, not discrimination, and upheld the company's decision.

  • Labour Appeal Court Findings the LAC evaluated four key issues:

  • Differentiation in Treatment: Whether Ms. Enever was treated differently compared to other employees.

  • Causal Connection: Whether her dismissal was directly linked to her cannabis use, constituting discrimination based on spirituality, conscience, or belief.

  • Policy Fairness: The fairness and potential discriminatory nature of Barloworld’s policy.

  • Impacts on Dignity: Whether the company’s approach was degrading or impaired Ms. Enever’s dignity.


Key Findings

No direct link between her dismissal and her personal beliefs since she admitted to recreational use. The policy did not unfairly differentiate between alcohol and cannabis users in a way that impaired dignity comparably to discrimination.


Highlighted disparity: Alcohol users could return to work after a day, while cannabis users could not, due to longer detection periods, despite a positive test not necessarily indicating impairment. Ms. Enever felt unfairly portrayed and argued a violation of privacy.


LAC Conclusion

  • Privacy Violation: Exclusive reliance on blood tests without proof of impairment violated her dignity and privacy.

  • Policy Overreach: The policy was too broad, affecting non-hazardous roles similarly to high-risk roles.

  • Unjustifiable Limitation: The policy forced Ms. Enever to choose between her job and her legal right to consume cannabis privately, with no evidence of workplace impairment or safety issues.


The LAC found her dismissal automatically unfair due to unfair discrimination and awarded her 24 months’ compensation.

 

 

Key Takeaways for Employers

  • Policy Review: Ensure substance abuse policies do not unjustifiably infringe on employees' rights and are tailored to specific job environments and roles.

  • Proof of Impairment: Zero-tolerance policies may not be justifiable unless impairment is proven or is an inherent job requirement.

  • Privacy Considerations: Balance employees’ privacy rights with workplace safety and productivity.


This case underscores the importance of fair, non-discriminatory substance use policies that respect employees' legal rights and privacy.

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