We have, in previous articles, addressed the key question around dismissals where there has been a breach of an employer’s zero-tolerance policies and rules regarding drugs and alcohol in the workplace. These can be accessed here, here and here.
Both the Labour Court and the Labour Appeal Court have been relatively consistent in upholding dismissals where employees have breached zero-tolerance policies and rules regarding the use of alcohol and other intoxicating substances, including drugs, in the workplace, particularly where the workplaces are regarded as dangerous workplaces such as mines, warehouses, factories, and similar facilities. It makes complete sense in these circumstances, particularly given the potential consequences, including deaths and serious injuries, and the onerous responsibilities which are placed on employers for the health and safety of their employees, for these dismissals to be sustained.
Does this mean that where an employer has implemented a zero-tolerance policy, dismissal is justified in all circumstances?
In the matter of Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA 86/22) [2024] ZAL AC 12 (23 April 2024) (Barloworld Judgment), the Labour Appeal Court was required to consider whether the dismissal of the employee, Ms Bernadette Enever (Ms Enever), after testing positive for cannabis, was appropriate and fair, in the circumstances.
Ms Enever had indicated that she smoked cannabis in the evenings and at weekends and used cannabis oils to help her with anxiety and migraines. She argued that she preferred this to prescribed medications which had side effects. She also indicated that her cannabis use did not impair her performance during office hours and stated that she was never “stoned” at work.
Barloworld relied on its zero-tolerance alcohol and substance abuse policy to ultimately dismiss Ms Enever. The Barloworld policy essentially provided that if an employee tested positive, they were declared unfit for work, until they could produce a clear test. Ms Enever continued consuming cannabis and could not produce a clear test.
The Labour Appeal Court found that Barloworld’s universally applicable zero-tolerance policy was too broad, and “irrational”. There was a strong emphasis on the fact that Ms Enever did not operate dangerous machinery but performed her tasks in an office. The Labour Appeal Court also focused on the fact that Ms Enever consumed cannabis in her private time.
The Labour Appeal Court addressed the question of whether employers can prevent employees from consuming drugs and alcohol, completely. The Labour Appeal Court confirmed that policies against drug and alcohol use are standard and are aimed at complying with South Africa’s Health and Safety Laws. It was on this basis that Barloworld attempted to justify its approach to limiting what Ms Enever did in her own private time outside the workplace.
The Labour Appeal Court found that this was not a justifiable reason for the infringement of Ms Enever’s right to privacy. In coming to this conclusion, the Labour Appeal Court emphasised that over – broad, unwarranted and unjustifiable invasions of the right to privacy are unconstitutional. Importantly, the Labour Appeal Court found that the use of a positive blood test alone without proof of impairment on the work premises was a violation of Ms Enever’s dignity and privacy. There must be a connection between the consumption of cannabis and an effect on the employer, for example, that an unsafe working environment is created for the employee and fellow employees. The Labour Appeal Court emphasised that it would be different for an employee who has been found to be “stoned”, intoxicated or impaired during work hours on the premises, or if it was an employee who operates or works with heavy and dangerous machinery. The court indicated “It must be stressed that an employer’s business and operational needs will not simply be accepted on the employer’s own say-so. It must be shown, objectively, that there are genuine and legitimate business and operational needs that justify the differential treatment of employees”.
The Labour Appeal Court also considered the differentiation between alcohol use and consumption of cannabis, accepting that, in relation to alcohol use, there are degrees of intoxication. It also, on this basis, found that Ms Enever, who consumed cannabis, was differentiated against. As a result, Ms Enever had proven unfair discrimination.
In conclusion, the Labour Appeal Court declared that Barloworld’s alcohol and substance abuse policy was irrational and violated 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 held further that Ms Enever’s dismissal was automatically unfair and ordered Barloworld to compensate Ms Enever by paying her 24 months’ compensation.
The following lessons can be learned from the Barloworld Judgment:
- A zero-tolerance policy for alcohol and drugs, which results in dismissal, is sustainable in a workplace which is dangerous, such as mines, and other workplaces where machinery and other dangerous equipment are used;
- Zero-tolerance policies must however differentiate (objectively by conducting a proper hazard identification and risk assessment) between workplaces that are dangerous, and those that are not, such as an office environment, so that the zero-tolerance policy does not unfairly discriminate against employees that, for example, consume cannabis in their private time;
- Differences between alcohol consumption and consumption of cannabis must be considered – alcohol typically leaves the system very quickly (and persons can test “clean” very quickly), whereas persons can test positive for cannabis for up to fourteen days (where the person does not continue consuming cannabis);
- Even where a person consumes cannabis regularly, unless it affects the employer’s activities, workplace, etc., this, on its own, will not justify dismissal, and any dismissal may be regarded as unfair discrimination and an unfair dismissal;
- South Africa’s Health and Safety Laws (the Mine Health and Safety Act, No. 29 of 1996 and the Occupational Health and Safety Act, No. 85 of 1993) place onerous obligations on employers, but, even with these onerous obligations, employers must distinguish the workplaces and whether there is a connection between the consumption of alcohol or cannabis, and adverse consequences in the workplace;
- The constitutional right to privacy is a critical factor when applying workplace policies and rules; and
- Over-broad policies and procedures may be found to be irrational (no rational connection between the policy / rule and what the policy / rule is attempting to address).
The Barloworld Judgment is a game-changer, and employers must be mindful of these key learnings when reviewing policies and procedures or implementing new policies and procedures around alcohol and intoxicating substances.