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))

June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?