Yet another case of employees dismissed for being high at work

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The Labour Court has dismissed two employees’ argument that cannabis is a plant and not a drug.

Nkosinathi Nhlabathi and Zukile Mthimkhulu were fired after testing positive for dagga at work.

Their employer, PFG sales, said their actions constituted a dismissal as there was policy in place that prevents anyone under the influence of alcohol or drugs within the workplace. The company also argued that it has zero tolerance in terms of testing for alcohol or drugs.

Nkosinathi and Zukile had confirmed during a disciplinary hearing that they had a training session on alcohol and drug dependency and that they had attended the policy training.

The company’s sales manager, Mark Scrivens told the Labour Court that when employees are under the influence of alcohol or a drug at work, there is a high risk that they cannot perform their jobs to the required standard and within the required safety regulations, in that they might not realise what danger they are exposing themselves or their colleagues or the plant to.

The two men argued before the court that dagga is a plant, it is no longer stigmatised as a drug and that it can legally be used in one’s private space for consumption. They contended that cannabis is not illegal to possess or consume.

They made reference to the Constitutional Court judgement that decriminalised the private consumption of cannabis. Their approach was that dagga is not a drug, that it is no longer illegal to use dagga and therefore the use of dagga cannot find its way into an employer’s disciplinary code, as it was legal and cannot constitute misconduct.

Mark explained that while dagga can be consumed in one’s private space, but according to the company’s disciplinary code, an employee was not permitted to be on-site under the influence of alcohol or drugs.

Dismissing the two men’s case, Labour Court judge Connie Prinsloo said it was evident that they confused issues relating to the decriminalisation of the use of dagga in private and the right to institute criminal proceedings and to prosecute an individual who uses dagga, with an employer’s right to take disciplinary action against an employee who contravened a disciplinary code.

“It is also evident from the Constitutional Court judgement that it does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes,” said the judge.

“They (the applicants) moved from a wrong premise when they approached their case as one where dagga was no longer to be regarded as a drug and thus automatically excluded from [their employer’s] alcohol and drug policy.”

A zero-tolerance policy, according to the judge, is one that does not allow any violations of a rule. “Dismissal was an appropriate sanction.”

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