Article 44/2023

How should an employee be dealt with if tested positive for being under the influence of cannabis?

Has the decriminalisation of the use of cannabis in private surroundings had any effect on the approach to be adopted


  • It is recommended that a difference should be made between an employee dependent on cannabis and an employee not dependent on cannabis
  • if an employee is dependent on cannabis, the matter should be dealt with as incapacity: ill-health, entailing, inter alia, that items 10 and 11 of Schedule 8 to the LRA should be taken into account
  • on the other hand, if an employee is not dependent on cannabis and wilfully disregards the workplace rules, such conduct may constitute misconduct – under the misconduct scenario, items 1 to 5 and 7 of Schedule 8 to the LRA should be taken into account
  • the aforesaid approach should also be applied in respect of alcohol and other drugs

(see, inter alia, Mthembu and Others v NCT Durban Wood Chips KNDB 4091-18 and Transnet Freight Rail v Transport Bargaining Council (2011) 32 ILJ 1766 (LC))

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.