In Enever v Barloworld Equipment (2024) 35 SALLR 115 (LAC), the employer adopted a zero-tolerance policy in respect of alcohol and drugs.
In terms of item 4 of such policy, it explicitly states that the employer could require the employees to undergo medical examinations during the course of their employment. Under item 10.7, it also forbids the use and possession of alcohol, while also prohibiting access to the workplace for anyone under the influence of alcohol and/or drugs.
The policy furthermore has a zero-tolerance approach to the possession and consumption of drugs and alcohol in the workplace. For drug testing, there would be random, voluntary and schedule testing and the testing would be carried out by an occupational health practitioner. If an employee returned a positive or non-negative result, he/she would be subjected to a confirmatory test. Where the confirmatory test result was also positive or non-negative, the employee would be sent home for a period of seven days and would be re-tested once he/she returned to work after that period. This process would be repeated until the employee tested negative.
During the period at home, the employee would be required to use any remaining annual leave that might be available and, if this is no longer available, the employee would be placed on forced unpaid leave.
In dealing with the aforesaid zero-tolerance policy, how did the labour appeal court approach the following issues:
- what is the effect of Minister of Justice and Constitutional Development and Others v Prince 2018 (6) SA 393 (CC) on being tested positive for cannabis at the workplace?;
- employers generally attempt to rely on the Occupational Health and Safety Act 85 of 1993 to justify a zero-tolerance policy – on what basis did the labour appeal court reject this approach?;
- on what basis did the labour appeal court determine that the aforesaid policy is overbroad and amounted to an unwarranted and unjustified invasion of the right to privacy and the right to dignity of the complainant?; and
- does the law allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence?
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- The effect of the Prince judgment (supra)
- This judgment decriminalised the use or possession of cannabis in private by an adult for own consumption and employers incorrectly attempt to exclude the impact of such judgment on the employment relationship.
- The Occupational Health and Safety Act 85 of 1993
- Section 8(1) places a duty on an employer to provide and maintain a working environment that is safe and without risk to the health of employees.
- In terms of Regulation 2A, an employer shall not permit any person who is/appears to be under the influence of intoxicating liquor or drugs to enter or remain at the workplace.
- The LAC specifically rejected the attempted aforesaid approach to Prince CC and reliance on the Occupational Health and Safety Act 85 of 1993 as justification for a zero-tolerance policy.
- The LAC, however, regarded the following as possible grounds for adopting a zero-tolerance policy: the nature of the job performed by the employee and the nature of the environment within which the employer and other employees operate.
- Is the aforesaid policy overbroad, seeing that it has the effect of sanctioning the unwarranted and unjustified invasion of the right to privacy (s14 of the Constitution) and the cognate right to dignity (s10 of the Constitution)?
- As indicated, the constitutional court, in Prince (CC), decriminalised the use and possession of cannabis in private by an individual for own consumption – this right of the individual is thus intricately linked to his/her right to privacy, as well as his/her right to dignity.
- Taking the above into account, the LAC had no problem indicating that the aforementioned policy was overbroad and amounted to an unwarranted and unjustified invasion of the right to privacy and the right to dignity of the complainant, namely, Bernadette Enever.
- Why did the LAC make such a finding?
- The LAC adopted the approach that the blood tests indicating the presence of cannabis, without any proof of impairment at the workplace:
- prevents the employee from engaging in conduct
- that entails the use of cannabis in private
- yet, the employer, by means of this policy, is able to force the employee to choose between his/her job and the exercise of their right to consume cannabis in private
- Does the law allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence?
- The LAC provided an emphatic ‘no’ to this question.
- It clearly stated that an employer cannot create a ‘no go area’ where all breaches of the policy entail transgressions.
- With reference to Department of Correctional Services and Another v Police and Prisons Civil Rights Union and Others 2013 (4) SA 176 (SCA) and Shoprite Checkers v Tokiso Dispute Settlement [2015] 9 BLLR 887 (LAC), the LAC in casu held that a restrictive policy is not justified if:
- it does not affect the employee’s ability to perform duties, or
- it does not jeopardise the safety of the public or employees, nor
- cause undue hardship to the employer in a practical sense.
- In summary, there must be a rational connection between the purported purpose of the discrimination and the measure taken – with reference to what is stated in this article, the LAC clearly indicated that the reliance on Prince (CC) and the reliance on the Occupational Health and Safety Act 85 of 1993 does not provide such justification.
