Substance Abuse in The Workplace

“Here we go again”

  • “0.0-0.02g/100ml – a warning for general and professional drivers;
  • 0.02-0.05g/100ml – fine for general drivers, a demerit point on a license; criminal charge for a professional driver, the suspension of license;
  • Above 0.05g/100ml – criminal charge for all and suspension of license.”

The above implies that where an Employee has been breathalyzed, and the reading is above 0.02, then the Employee could be subject to corrective disciplinary action.

The preferred alternative now is for the Employer to adopt a “zero-tolerance” policy concerning all substances, especially in a high-risk working environment, as it greatly simplifies the application of the policy.

With Cannabis use, it is much harder to determine if the Employee is under the influence or whether the drug is merely still present in the body. Adopting a “zero-tolerance” policy eliminates having to prove that the Employee was under the influence.

To illustrate the impact of a “zero-tolerance” approach, the following cases are helpful. In the recent matter of Enever v Barloworld Equipment, a division of Barloworld South Africa (1 June 2022) the facts were as follows:

The Employer had a high-risk working environment, yet the dismissed Employee worked in the office area and did not routinely enter the high-risk areas. The Employer had a “zero-tolerance” policy in respect of all substances. The Employee repeatedly tested positive for Marijuana, and the Employer offered the Employee several weeks to test ‘clean’. The Employee was aware of the Employer’s policy and was dismissed after a fair process was followed. The Court was not swayed by the Employee’s allegation that she used the Marijuana for medicinal purposes. The Court said that it is irrelevant if the Employee was able to perform her work. The Court noted that because Marijuana poses a challenge in the determination of being “under the influence”, the Court will accept that if the substance is present in the Employee’s body that the Employee is under the influence. The Court ruled that the Employee transgressed a rule, it is a form of misconduct, and that the Employee’s capacity i.e. ability to perform the work, was irrelevant.

Very importantly, the Court further ruled that where the alcohol and substance policies are applied to all Employees it does not constitute discrimination.

If the Employer adopted a zero-tolerance policy, as in the Enever case, the Employee would be in breach of the rule if the Employee reports for work with alcohol or substances present in the body or has consumed alcohol or prohibited substances while at work. The Employee’s ability to perform the job or not becomes irrelevant. The nature of the work would very well determine the most appropriate sanction.

Although the Enever case in June 2022 has already established the principle that an Employer may have a “zero-tolerance” alcohol and substance policy and that Employee who knowingly transgress the workplace rules may face dismissal, the principle was reiterated in another recvent matter of NUMSA OBO Nhlabathi and one other vs PFG Building Glass (Pty) Ltd (1 December 2022).

Two Employees tested positive for Marijuana while at work, and after a disciplinary process, they were dismissed. The CCMA ruled in favour of the Employer, and the aggrieved Employees approached the Labour Court. The Employees alleged that the Constitutional Court decriminalized Marianna in the matter of Minister of Justice and Constitutional Development and Others v Prince (Clarke, Stobbs and Thorpe Intervening) (Doctors of Life International Inc as Amicus Curiae); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others (CCT108/17, 18 September 2018).

The Labour Court ruled in the PFG Building Glass case that the legalization of the private use of Marijuana by an adult in their home does not provide ‘safe passage’ for workplace policy transgressions. The Prince ruling did not interfere with the definition of “drug”. The Court upheld the dismissal of the two employees.