Case Law Review: Clearing the Haze: Cannabis use in Zero Tolerance Workplaces

Welcome Effective Harmony followers and welcome to this week’s edition of Case Law Review. Today we’re looking at the landmark Labour Appeal Court case, known as the Barlow World Case, that deals with cannabis in the workplace. An employee picks up for work under the influence or having cannabis in the system. Where the challenge is coming in is the constitutional court in the Prince case having decriminalized the private usage of cannabis.

That means it’s no longer a criminal offense if a person use cannabis or cannabis related products in the privacy of his or her home. But how does that translate to the workplace? Because the workplace itself is not regarded as the private space of an employee as an example. And that created a bit of a challenge because on the one hand employers may or may not recognize or appreciate that the person can use cannabis at home.

Understanding Zero Tolerance Policies in the Workplace

But what about the zero tolerance policy? A lot of companies got a zero tolerance policy as far as the usage of drugs, cannabis or alcohol are concerned. So, what do you do now with an employee who picks up a work, subject the person to a medical test, and voila, it’s found that there’s cannabis in the system. And this is the case that we are dealing with in the Barlow World case, Enever versus Barlow World.

Mrs. Innever was employed at Barlow World working in the office, so she was not working as a driver of heavy equipment, nor was she working at a location, at an employer that was considered to be dangerous. She was working in the office as a category analyst. Now, the employer had a zero-tolerance policy throughout the entire organization, primarily because they are working with dangerous equipment, but also they want to comply with the Health and Safety Act’s requirement that an employer should create a safe working environment for its employees. In January 2020, the employee arrived for duty and she was subjected to a medical test and then was found positive for having cannabis in the system.

The Disciplinary Process and Initial Legal Proceedings

In terms of the policy, they have a 14-day clean-out period. With other words, she will need to stay at home. And at that time or after the expiry of the 14 day period, she will be retested. And in her case, she was found to be positive yet again.

She basically stated that the reason was because she’s been diagnosed by a medical practitioner to have pain and sleep anxiety. The doctor therefore prescribed cannabis-related medicine for her. But due to side effects of the medicine, she then decided that she’s going to smoke a joint in the evening and also on weekends. And this being the reason why she tested positive for having cannabis in the system.

The employer then, in February 2020, subjected her to a disciplinary hearing, basically on the charges of being in breach of her zero-tolerance policy. She pleaded guilty to the charges, and considering that she did not want to remedy the situation in terms of being rehabilitated, in not committing the same offences again, the employer therefore subsequently dismissed her. The employee then filed an unfair discrimination case to the Labor Court in terms of Section 6 of the Employment Equity Act, but also an automatic unfair dismissal in terms of Section 187 of the Labor Relations Act. The Labor Court, however, ruled against her, finding that there was no differentiation between employees as far as the employer’s implementation of the Gelderland policy are concerned.

How Does the Right to Privacy Impact Workplace Drug Policies?

In other words, all employees were subjected to the same policy in the same manner and in the similar circumstances they were also being sent home for the clean-out period and thereafter being subjected to a disciplinary process. But that led us to the Labour Appeal Court case. The Labour Appeal Court basically agreed with the Labour Court as far as the employer not discriminating in terms of the implementation of the policy itself. But the Labour Appeal Court went a step further and addressed the elephant in the room in this case.

And that is privacy laws in terms of Section 14 of the Constitution. a person has a right to privacy. So, the question the Labour Appeal Court wanted to answer was, to what extent does this policy, this zero-tolerance policy, invade her privacy, but also infringes on her human dignity? And that is where the Labour Appeal Court then basically found that a person’s got a right to privacy, and they then reference to the Constitutional Court case, it was known as the Bernstein case.

Let me just read to you here. The Labour Appeal Court dependent on the Bernstein case. Essentially, in the right to live one’s own life with a minimum of interference, It concerns private, family and home life, physical and moral integrity, honor and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information given or received by an individual, confidentiality.

The Unique Challenge of Cannabis Testing in Employment

Cannabis users, because cannabis stays in the system much longer than alcohol, in essence, the employee had to make a decision, either to exercise her right, her constitutional right to privacy, and to use cannabis in the privacy of her home, or to be employed. But you can’t have both. Because in essence, if you are under influence of alcohol, within 24 hours or maybe 48 hours, your system will be clean. It will take days and maybe if not weeks for your system to clean out of cannabis.

So if you are a cannabis user, you cannot be employed if the company adopted a zero-tolerance policy. And that is ultimately what this came down to. So the court went further and saying, within this context of the right to privacy, I, now the judge, can think of no more an irrelevant fact to the employer in this case than the appellant enjoying a joint during her evenings in the privacy of her home. And the reason why the court said this is because even though the employer highlighted safety in terms of the Occupational Health and Safety Act, They’ve adopted an arbitrary and unilateral zero-tolerance policy without being able to demonstrate how they arrived at that result.

Why Can’t Employers Apply Blanket Zero-Tolerance Policies?

In other words, And I’ve seen this a lot at companies where in terms of this kind of policy, an employer will simply thumbs up, we must have a zero tolerance policy. But how did you get to that? Because the reality of the matter is in this case, she was working in the office, there was no dangerous equipment. She was not a driver.

She was not working with the earth moving equipment. She was working in a safe environment at the offices of the employer. And also, her performance was not impaired at all. So the lesson here is an employer cannot just thumbsuck and adopt a unilateral approach to a zero-tolerance policy because in the Bollywood case, the court found their argument to be irrelevant because they couldn’t demonstrate how the office was subjected to the same conditions of work than at any other space in the company. There was no danger. The court continued, the use of a blast test alone without proof of impairment on the work premises is a violation of the appellant’s dignity and privacy. This as the policy prevents her from engaging in conduct that is of no effect to the employer.

She was not impaired. There was no prejudice to the employer whatsoever. Yet her employer is able to force her to choose between her job and the exercise of her right to consume cannabis. The respondent, the employer, has not shown that she was stoned or intoxicated at work as a result, that her work was adversely affected, or that she created an unsafe working environment for herself or fellow employees, the respondent would not have known, apart from their parents volunteering the information that she smoked cannabis and the reason thereof. So basically, she was not impaired, there was no prejudice to the employer, and there was no reason to adopt a zero-tolerance policy in a unilateral and a blanket way to all employees working at the company. It was simply not necessary to do so and they couldn’t demonstrate, the employer could not demonstrate why in this circumstances they should have adopted a zero-tolerance policy. So what are we learning here today?

Critical Lessons for Employers on Substance Policies

The court is not trying to say that you can never dismiss somebody for being in breach of a zero tolerance policy. It also doesn’t try to say you cannot have a zero tolerance policy. What it is saying is that when you have a zero tolerance policy, it must be substantiated. You must demonstrate that, okay, in the offices, for instance, we don’t need a zero tolerance policy.

At the logistics department, we probably do need a zero tolerance policy. And in the manufacturing division, we probably do need a zero tolerance policy. You can’t just wake up and say, zero tolerance policy for all the partners. You must have merit to that policy.

You Keeping in mind that Schedule 8 of the Code of Good Practice of the Labor Relations Act states that an employer should have rules in the workplace, but that the rules should be reasonable. And this is what it comes down to. You must demonstrate that that rule is relevant to that specific workplace. So, and secondly, There’s this other issue here.

Impairment. Often employers will dismiss employees for having alcohol or cannabis in the system, but they’re not impaired. So this case basically sort of alluded to the fact that before you dismiss, An employee should probably show some impairment of performance. That’s quite important.

Interesting, the order of the Labour Appeal Court in this case, it is declared that the respondent is their alcohol and substance abuse policy is irrational and violates the right to privacy in section 14 of the constitution to the extent that it prohibits office-based employees that do not work with or within an environment that has heavy, dangerous and similar equipment from consuming cannabis in the privacy of their homes. The Labour Appeal Court ruled that indeed the employer committed an unfair discrimination towards the employee and an automatic unfair dismissal. So it was a great victory for the employee but also a great lesson for us.

As employers, you know, you can’t just adopt a unilateral approach to zero tolerance. You need to motivate why in certain section departments you may or may not need such a policy. And probably also focus on impairment. Now, one thing that didn’t come out yet, per se, is the impact of this on people being found positive for, let’s say, alcohol.

I think there’s relevant factors here, too. Once again, showing impairment. And secondly, demonstrating that the policy, the zero tolerance policy, indeed, is reasonable in terms of Schedule 8 of the Code of Good Practice. Sometimes, I suppose, if you in the legal industry, for instance, who of us knows the sitcom Suits?

There they drink whiskey all the time in the offices, you know. So, it’s not to say that in all circumstances at every single company that they must adopt a zero tolerance policy. You need to motivate and demonstrate why.

Key Takeaways

• A zero-tolerance policy is not automatically valid. It must be justified based on the specific role, environment, and actual risk within the workplace.
• Testing positive for cannabis is not the same as being impaired. Employers need evidence of impairment or risk, not just the presence of substances in the system.
• Blanket policies applied across all roles are likely to fail if they ignore differences between high-risk and low-risk environments (e.g. office vs. heavy machinery).
• Employees retain a right to privacy. Conduct outside the workplace, with no impact on performance or safety, may fall outside the employer’s control.
• Policies must be reasonable and defensible. Employers should be able to explain why a rule exists and how it connects to safety, performance, or operational risk.
• Dismissal based solely on a positive test, without showing impairment or workplace impact, can amount to unfair discrimination and an automatically unfair dismissal.