Employee Testing Positive For Cannabis Whilst At Work

The CCMA, in Mthembu and Others v NCT Durban Wood Chips (KNDB4091-18), considered the following important issues:

(a)     With reference to Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others 2017 (4) SA 499 (WC), what is the viewpoint of the CCMA where an employee arrives at work under the influence of cannabis?

(b)     What is the content of the test applied by the CCMA to determine whether or not an employee, who arrives at work under the influence of cannabis, wilfully disregarded his or her employer’s safety rules?

INTRODUCTION

The CCMA ruled that, despite the constitutional court declaring the private use of cannabis legal, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours.

PERTINENT FACTS OF THE CASE

The respondent conducts business in the wood and chip industry, working with large machinery and extremely dangerous vehicles and large logs weighing between 30 and 100 kilograms which can cause fatalities.  The work floor is fraught with danger.

Based on this, safety rules are in place to protect employees and the respondent.

employees charged with being under the influence of intoxicating substance

Applicants were charged with being under the influence of intoxicating substances whilst on duty.  From a urine test, they were found to be under the influence of cannabis, which they admitted but still challenged their dismissals.

FINDINGS OF THE CCMA

analysis of evidence

starting point: schedule 8, item 7 of the LRA

In determining whether the dismissal was fair, the CCMA considered:

  • whether or not the employee had contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
  • if a rule or standard had been contravened, whether or not:
  • the rule was a valid or reasonable rule or standard;
  • the employee had been aware, or could reasonably have been expected to have been aware, of the rule or standard;
  • the rule or standard had been consistently applied by the employer; and
  • dismissal was an appropriate sanction for the contravention of the rule or standard.

common cause

It was common cause that the respondent had in place a ‘zero-tolerance’ substance abuse policy which stated that the possession, sale or use of illegal drugs was not consistent with the company’s need to operate safely and efficiently and, therefore, no employee of the company could use or possess unlawful drugs at any time.

The applicants had signed the substance abuse policy which had been explained to them.  They testified that they were aware that they could not use drugs at the workplace.  They had also been told this at the tool box talks.

defence of the employees

They all provided a common explanation which was that they smoked cannabis in their private time.

Prince judgment (CC)

The CCMA asked whether it was reasonable to have this rule in place at the workplace.  The constitutional court, in Prince v Minister of Justice and Constitutional Development, pronounced that legislation criminalising the private use of cannabis was inconsistent with the Constitution.  The court found that the provisions were only unconstitutional to the extent that they entrenched upon the private use and consumption of a quantity of cannabis for personal purposes.

CCMA: the above is consistent with the legality around other intoxicating substances

This was consistent with the legality around other intoxicating substances, such as alcohol.

Like alcohol, where there is an inkling that such intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer was entitled to discipline where the intoxication translated into an offence.

where a high degree of safety is required, reasonable for employer to have rules prohibiting consumption of an intoxicating substance or reporting to work under its influence

Because of the high degree of safety required of companies with heavy machinery and generally dangerous equipment, it is reasonable for employers to have rules in place prohibiting the consumption of such substances at the workplace or reporting to work under the influence thereof.

evidence led by employer

The rationale behind the rule of the company was consistent with the high degree of danger posed at the workplace.  The respondent receives 60 to 85 truck deliveries daily carrying logs weighing up to 100kgs, has heavy machinery moving around and a clipper that spins and would be difficult to stop in case of an emergency, as it takes between 10 and 15 minutes to stop.

CCMA: no evidence of employees being dependent on such substance

The test for a breach of safety standards is the wilful disregard for such rules.  The applicants had been schooled in the substance abuse policy and been told of the company’s policy at tool box talks.  Given this knowledge, it was incumbent upon the applicants to inform the employer of any dependency issues they had.  They had not.

CCMA: test for wilful disregard of safety rules

The test for wilful disregard of safety rules is an objective reasonable man test.  It would be reasonable to have expected the applicants not to have presented themselves to work under the influence of cannabis because of the inherent dangers at their workplace.

applicable sanction

The applicants had been aware that the respondent had a zero-tolerance view toward substance abuse and had been aware of the possibility of dismissal if testing positive.  They were given an ample opportunity to adjust their private use of cannabis.  It had been for them to make sure that, when smoking for private use, it could not result in them reporting for work under the influence.  This was no different to consuming alcohol to such a degree the night before that the employee reported for duty under the influence the next day.

award of the CCMA

The CCMA, accordingly, found the dismissals of the applicants to be substantively fair.

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.

What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:

(a)     where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;

(b)     where the parties reached an agreement as to what such documents purport to portray?;

(c)     where the parties reached an agreement that the documents should be regarded as evidence?

The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?

The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:

(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]