The judgement given by the Constitutional Court regarding the legalisation of cannabis (hereafter referred to as the cannabis judgment) has caused a few issues relating to the right to the use and possession of cannabis in the workplace and the effect thereof on an employer.
On September 18, in the case of Minister of Justice and Constitutional Development and Others v Prince (Clarke and others as intervening parties, Doctors for Life International Inc as amicus curiae) and related matters 2018 (10) BCLR 1220 (CC), the Constitutional Court passed a landmark judgment.
The Constitutional Court held that citizens now have the right to cultivate, possess and use cannabis in private for their own personal consumption.
However, cannabis may not be used in public, in the presence of children or non-consenting adults. Furthermore, it is still illegal to purchase cannabis from a supplier.
The cannabis judgment was based on the grounds that the criminalisation of cannabis is unconstitutional as this infringes people’s fundamental right to privacy, as provided for in terms of section 14 of the Constitution of the Republic of South Africa, 1996.
In the cannabis judgment, the Constitutional Court considered the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965 which criminalises the use, cultivation and possession of cannabis.
The Constitutional Court held that these sections should be amended to give rise to the right as set out in the cannabis judgment.
The cannabis judgment has a negative effect on the workplace. This is due to the fact that since cannabis has been legalised, employees are under the impression that it is now legal to use and possess cannabis at work, but this affects productivity, increases absenteeism and decreases the health and safety standard of other employees in the workplace.
The burden on employers have also increased since testing whether an employee has used cannabis is much more complex than using a breathalyser test as is the case when testing for the use of alcohol and then confirming an employees’ blood-alcohol level by means of a blood test.
The test used for testing whether an employee has used cannabis, includes urine analysis, hair analysis, as well as saliva tests.
These tests can however not test the level of intoxication. These tests are also more timeous and expensive.
There is, however, one recommended solution, that employers may use, and this is to adopt a zero-tolerance policy as many companies do in terms of intoxication of alcohol at work. In respect of this policy, an employer may dismiss an employee based on misconduct.
Regardless of this, there is one exception to the aforesaid; this is where an employee can prove that he or she is addicted to using cannabis.
In these circumstances, it will be regarded as incapacity and not misconduct. Thus, such employee must be treated the same as any other employee suffering from an illness. In terms of the Code of Good Practice on Dismissal an employer will be liable to assist the employee in counselling and rehabilitation before the employer may consider dismissing such employee.
Notwithstanding this, the Occupational Health And Safety Act 85 of 1993 (hereafter “OHS Act”), in particular the General Safety Regulation number 2A, states that any employer or a user, as the case may be, shall not permit any person who is, or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
Additionally, no person at a workplace shall be under the influence of, or have in his or her possession, or partake of or offer to any other person intoxicatingly goods or drugs.
Consequently, an employer must adhere to the aforementioned to ensure that they are not guilty of contravening the provisions of the OHS Act.
Informing employees of the provisions of the OHS Act will most likely encourage employees not to go to work under the influence of cannabis or to use or possess cannabis at work.
It is clear from the above mentioned, that regardless of the cannabis judgment, it is illegal to use, be under the influence or in the possession of cannabis at work.
Article compiled by Carel Roberts, candidate attorney of Malherbe Rigg and Ranwell Attorneys (MRR).
For any advice or assistance feel free to contact MRR on 011 918 4116.
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