Dealing With Drug Abuse Is A Precarious Balancing Act

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Section 6 of the EEA coupled with case law findings prohibits unfair discrimination against employees on arbitrary grounds where such discrimination affects the employee’s dignity.


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In the recent Labour Appeal Court case of Enever vs Barloworld (JA 82/22, 23 April 2024) the Court found that infringing an employee’s right to have cannabis in her bloodstream while at work can constitute an automatically unfair dismissal. In this landmark case Enever worked in an administrative position based in an office environment located within a plant that serviced earthmoving equipment.

She was tested and found to have cannabis in her blood stream while at the workplace. The employee admitted that she used cannabis regularly in the privacy of her home for medicinal and recreational reasons.

Despite the fact that the employer had a zero-tolerance policy as regards intoxicating substances at the workplace the hearing initiator recommended, at her disciplinary hearing, a penalty of a final warning. However, the employee was fired because she had tested positive for cannabis and because she insisted that, come what may, she would continue to use cannabis at home.

It was established in the Labour Appeal Court that:

1. The Constitutional Court had decriminalised the private use of cannabis
2. The employee had not used the drug at the workplace
3. She worked purely in an office environment
4. There was cannabis in her bloodstream when she was tested at the workplace
5. There was no proof that the leftover cannabis in her system impaired her in any way or had caused any degree of danger of any kind to herself, to others or to the employer
6. The employer’s dismissal of Enever had breached her right to privacy as well as her dignity.

The Court therefore found that Enever’s dismissal was automatically unfair and ordered Barloworld to pay her compensation equal to 24 months’ remuneration, which amounted to over one million rand.

The above case makes it clear that, although employees can, in certain cases, be dismissed for being under the influence of intoxicating substances at the workplace, the employer is first required to prove that the employee was intoxicated and that this, in fact, poses a real danger to workplace safety and productivity.

This landmark ruling provides a million reasons requiring employers who wish to protect workplace safety and productivity to balance this operational goal with respect for the legal rights of their employees. Due to the fact that the law so heavily protects employee rights, employers have no choice but to train their managers thoroughly in achieving this very difficult balancing act.

Employers no longer have any excuse to deprive their managers of this crucially important training. This is because:

1. The outcome of the Barloworld case and of many other court cases prove that employers cannot afford not to train their managers in labour law; and
2. There now exist a training product that is both inexpensive and does not interfere with the managers’ busy work schedules. This is because the product allows each manager to participate in the training at times that suit him or her.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE provides this solution. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time.

This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through
the use of an animated case study that runs throughout the 48 chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video subscription offering helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.

To learn more about our groundbreaking new video series ‘WALKING THE NEW LABOUR LAW TIGHTROPE’ go to www.labourlawvideos.co.za.

Suggested Article:

labour law

South Africa’s labour legislation changes periodically and case law decisions often have the effect of changing the law. As management at all levels make daily decisions affecting the myriad of employee rights, all managers need to be able to take the complex, increasing and constantly changing labour laws in to account when making their decisions.

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