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))

September 2, 2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

September 2, 2025

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

August 26, 2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.