Puff puff pass: Fired cannabis employee wins appeal, gets R1m

In a groundbreaking judgment, the Labour Appeal Court of South Africa ordered Barloworld to pay R1 million (or a year’s salary) to a woman who was fired from the global industrial company for consuming medical cannabis after hours.

The ruling could prove to be a real game changer as it finally addresses the thorny issue of being granted the constitutional right to smoke cannabis in your private space – but facing dismissal for the presence of the substance lingering in your blood. 

Cannabis case: Zero approach ‘irrational’

The Labour Court found this week that Barloworld’s zero-approach policy to drugs and alcohol was “overbroad” and infringed on employer Bernadette Enever’s right to privacy.

It further ruled that Barloworld’s 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 who do not work with or within an environment that has heavy, dangerous and similar equipment, from consuming cannabis in the privacy of their home.

The Constitutional Court found in September 2018  that the personal use or cultivation of dagga in one’s private space is not a criminal offence and that not allowing a person to smoke cannabis in private was against the protection of privacy that is laid down in Section 14 of the Constitution.

‘Unfair discrimination’

The Labour Court ruled that Enever suffered unfair discrimination and that her dismissal was automatically unfair.

According to court records, Enever was an office-based category analyst at the time of her dismissal.

Enver signed an Employee Policy handbook in 2012 which specifically stated that the corporation may force employees to undergo medical exams following the Constitutional Court’s decision to decriminalise cannabis use for individuals in the privacy of their own homes.

Medical cannabis

In May 2012, Enever’s doctor prescribed her medication for pain and sleep due to severe anxiety, but she said she suffered side effects, and following the decriminalisation judgment, she began using cannabis.

According to her, it helped her reduce her reliance on prescription medication.

Enever said she smoked a joint every night and on weekends, along with the daily use of cannabis-based products like cannabis oil.

ALSO READ: Pain, anxiety: Medical cannabis could improve quality of life for those with chronic health issues

Tests and dismissal

In January 2020, four months before her dismissal, Enever had to undergo a medical test in order to regain biometric access to the workplace, which included a urine test. The test results came back positive for cannabis use. After follow-up tests also showed traces of cannabis, she was dismissed.

In her defence, Enever discussed the positives she has noticed from consuming cannabis, namely how she has less anxiety, better sleep, and is no longer reliant on side effect-causing medications.

It was also accepted by her employer, according to the court documents, that during her time of testing, she was not impaired in the performance of her duties or suspected of being intoxicated.

Following her dismissal, Enever took her matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) but it did not take place due to the Covid-19 pandemic and therefore she approached the Labour Court.

National Assembly finally gives Cannabis Bill the green light

The National Assembly’s decision to adopt the Cannabis for All Purposes Bill in November 2023, finally stubbed out a five-year-long lull which followed the groundbreaking 2018 Prince judgment of the Constitutional Court decriminalising the private use of cannabis.  

On 27 February 2024, the National Council of Provinces (NCOP) passed the amended piece of legislation, which establishes a new legal framework for adult private use of cannabis while tightening and clarifying the restrictions related to children and the use and possession of the plant.

The last step that now remains is for President Cyril Ramaphosa to sign the legislation into law.

New cannabis laws: What are the prescribed amounts?

According to the Bill, there is a prescribed quantity of cannabis that an adult can cultivate and possess for personal use:

• Unlimited seeds and seedlings for private cultivation;
• Allowed four flowering plants or plant equivalent per adult person in a private place;
• Privately possess one flowering plant or plant equivalent in a public space;
• Privately possess 100 grams of dried cannabis or equivalent in a public space;
• Privately possess 600 grams of dried cannabis or equivalent per adult in a private place.

A an adult person may provide to, or obtain from, any adult person without payment:

• 30 seeds or seedlings or any combination thereof;
• One flowering cannabis plant or plant equivalent;
• 100 grams of dried cannabis or equivalent.

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