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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))

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?