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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

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  • 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))

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?