By Candice Murray / Candidate Attorney / Mooney Ford Attorneys
In South Africa, the regulation of alcohol and cannabis use in the workplace is governed by several key pieces of legislation, including the Drugs and Drug Trafficking Act, the Medicines and Related Substances Act, the Occupational Health and Safety Act, the Employment Equity Act, and the Labour Relations Act.
Below is a quick overview of these laws:
- Drugs and Drug Trafficking Act, No. 140 of 1992
Under this Act, a ‘drug’ is defined as any substance listed in the schedules attached to the Act or any plant that can be used to produce such substances. Sections 4(b) and 5(b) of the Act prohibit the use, possession, and dealing in dangerous dependence-producing substances. Cannabis is classified as an “undesirable dependence-producing substance” in Part III of Schedule 2.
- Medicines and Related Substances Act, No. 101 of 1965
Cannabis is categorized as a controlled substance in Schedule 7 of this Act. Section 22A (9)(a)(i) prohibits individuals from acquiring, using, possessing, manufacturing, or supplying cannabis, with exceptions for medical practitioners, analysts, researchers, or veterinarians under prescribed conditions.
- Occupational Health and Safety Act, No. 85 of 1993
The OHSA imposes general duties on employers to provide a safe working environment for their employees under Section 8. General Safety Regulation 2A prohibits granting workplace access to individuals under the influence of intoxicating substances.
- Employment Equity Act, No. 55 of 1998
Section 7 of this Act regulates the medical testing of employees and generally prohibits medical testing unless it is justified by legislation, medical facts, employment conditions, social policy, or the inherent requirements of a job.
- Labour Relations Act, No. 66 of 1995
The Labour Relations Act governs fair dismissals and recognizes three grounds for legitimate termination of employment: employee conduct, capacity, and operational requirements of the employer’s business. Dismissals are considered unfair if they are not effected for a fair reason and in accordance with a fair procedure. It also outlines specific instances where dismissals are automatically unfair.
Case law surrounding alcohol and cannabis use in the workplace in South Africa is complex and evolving. Several key cases highlight the legal principles that govern this issue, addressing distinctions between incapacity and misconduct, the importance of consistent application of drug policies, and the impact of decriminalization on workplace rules.
The landmark case Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others (2018) gave rise to many questions surrounding cannabis use in the workplace. The Constitutional Court of South Africa ruled that the private use, possession, and cultivation of cannabis by adults for personal consumption is not prohibited. This case significantly changed the legal landscape for cannabis use in private spaces.
In cases such as Ramoitshane / Dixon Batteries (Pty) Ltd (2009) and the Labour Court case Samancor Chrome Ltd (Western Chrome Mines) v Willemse (2023), the need for employers to conduct appropriate tests to confirm intoxication rather than relying solely on common signs was emphasized. These cases highlight the importance of ensuring fair procedures and reliable testing methods when taking disciplinary action based on alcohol and drug policies.
In Transnet Freight Rail v Transnet Bargaining Council and Others (2011), the Court established the distinction between incapacity (related to alcoholism) and misconduct (reporting for duty under the influence). Employees suffering from alcoholism should be provided with treatment and support, while employees reporting for duty under the influence of alcohol can face disciplinary action.
Whilst Moodley and Clover SA (Pty) Ltd (2019) reaffirmed that employees using cannabis at work can be dismissed if the employer has a zero-tolerance policy, the case of Enever v Barloworld Equipment, A Division of Barloworld South Africa (Pty) Ltd (2022) highlighted that the use of cannabis for medical reasons should be carefully considered, and the onus is on the employee to provide evidence of their medical condition.
In National Union of Metalworkers of South Africa obo Nhlabathi and Another v PFG Building Glass (Pty) Ltd and Others (2023), it was further clarified that the decriminalization of cannabis for private use does not protect employees from disciplinary action if they violate company policies. Employers are entitled to enforce strict alcohol and drug policies for safety reasons.
In conclusion, South African case law reflects a nuanced and evolving approach to alcohol and cannabis use in the workplace. Employers must have clear and consistently applied policies while also considering individual circumstances, including medical conditions. Employees are expected to adhere to workplace rules, including drug and alcohol policies, even in light of changes in the legal landscape regarding cannabis use for private purposes.
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