The Western Cape High Court has just ruled that Cannabis prohibition in South Africa is unconstitutional. This was todays the verdict of Jeremy Acton, leader of The Dagga Party, and Ras Gareth Princes multiple year long constitutional court case. Photographer: Armand Hough
Pretoria – Despite the Constitutional Court decriminalising the private use, cultivation and possession of marijuana, two employees had to find out the hard way that the judgment doesn’t guarantee protection from being dismissed after they tested positive for cannabis.
The employees tested positive for cannabis while on duty and were subject to a disciplinary hearing, and subsequently dismissed.
Following their dismissal, they approached the Commission for Conciliation, Mediation and Arbitration (CCMA) saying that their dismissal was substantively unfair on the basis that the apex court had decriminalised the use of cannabis.
The CCMA ruled in favour of the company, saying the workplace was subject to the health and safety rules set out in the Occupational Health and Safety Act.
Unhappy with the outcome, they took the CCMA’s decision on review in the Labour Court.
In court papers, one of the men said that he used dagga three days before he reported for work, and said since he had been employed by the company in 2016, he had been smoking dagga and had been doing his job properly.
The second man said he was aware of the company’s alcohol and substance policy, but stated that the policy was silent on dagga and he did not know that if he tested positive for dagga, it would lead to his dismissal.
He also added that the Concourt found that dagga was a herb, and not a substance.
In responding papers, the manager insisted that the company’s disciplinary code clearly states that, “under the influence of alcohol or drugs within the workplace” is an offence for which dismissal is the prescribed sanction for the first offence.
He said employees may not be under the influence of alcohol or drugs or anything that could alter their minds for a number of reasons, including safety considerations, as their workplace is a dangerous or hazardous environment.
The Labour Court found that the Constitutional Court judgment does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes.
“In my view, it matters not that the applicants used dagga in private, that they posed no danger on the day they tested positive for dagga, that their period of employment was not insignificant or that they had a clean disciplinary record.
“It was undisputed that the company applied the alcohol and drug policy with zero-tolerance for contravention thereof, due to its hazardous workplace and its duty to provide a safe working environment,’’ said Judge Connie Prinsloo.
IOL