9 November 2020 by and Employment Law Alert

Under the influence: No proof, no dismissal

Following the Constitutional Court judgment where the use of cannabis was decriminalised, employers have faced difficulty in policing and enforcing policies regulating the use of cannabis by employees reporting for duty. An example of this was demonstrated in Rankeng/Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 (CCMA), where the CCMA commissioner ordered the reinstatement of an employee who had been dismissed after testing positive for cannabis.

Background

The applicant worked as a picker for Signature Cosmetics and Fragrance. The applicant was charged with being under the influence of cannabis while at work. When questioned by his supervisor, he admitted that he had smoked early in the morning a few hours prior to his shift. He was found guilty of misconduct and subsequently dismissed.

The two witnesses testifying on behalf of the company testified that the applicant reported to the office late and appeared with red and watery eyes. The applicant agreed to have the test taken which came back positive for cannabis.

The company has a strict policy which prohibits anyone from working while under the influence of alcohol or drugs in compliance with the Occupational Health and Safety Act. In terms of this policy, an employee may be dismissed even for the first offence. Furthermore, the company’s disciplinary code states that any employee that is suspected of being under the influence of any drug may not remain on the premises. The company’s management is further empowered to exercise reasonable discretion in determining whether an employee is fit to report for duty.

Commissioner’s findings

The commissioner held that the difficulty with a charge of this nature is that there is no scientific method of determining whether a person is under the influence of the drug such that there is an impairment in their performance. On these facts the commissioner found that the company’s evidence did not point to any evidence of impairment of faculties, apart from red and watery eyes, which would suggest an inability to perform tasks allocated. On this basis, the commissioner found that although the applicant’s conduct was irresponsible since it was in contravention of the company policy, dismissal was not an appropriate sanction and a final warning would have sufficed. The commissioner ordered that the employee be reinstated and issued with a final written warning

This ruling demonstrates the potential difficulties for employers who seek to enforce their policy on drug and alcohol use. The commissioner held that the burden is on employers to prove that the employee was under the influence of a narcotic drug such as cannabis. Employers may do so by relying on circumstantial evidence such as obvious signs of physical or mental impairments. Employers should therefore ensure that they have sufficient evidence to prove physical or mental impairment of an employee’s faculties before a dismissal in these circumstances can be implemented, even in instances where the use is prohibited in the company policy.

The above scenario is, however, distinguishable from situations where employers enforce zero-tolerance policies on testing positive for alcohol/drugs due to the inherently dangerous working environments within which they operate.

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