Two employees at a glass manufacturer were sacked after testing positive for cannabis and took their case to the labour court.
They said the Constitutional Court had ruled dagga was a herb, not a drug, but the judge said this was untrue.
Liberalisation of dagga for private use does not mean rules on workplace safety can be ignored, said judge Connie Prinsloo.
Two men who tested positive for dagga at work claimed their dismissal was unfair because the Constitutional Court had said cannabis was no longer a drug, just a plant.
But the justices who unanimously decriminalised private use of dagga in 2018 said nothing of the kind, Joburg labour court judge Connie Prinsloo ruled last week.
The men’s understanding of the ConCourt decision was either “very limited or totally wrong”, said the judge, who dismissed the men’s attempt to review an arbitrator’s decision that their dismissal had been fair.
“They 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,” she said, accusing the men of being “opportunistic”.
PFG Building Glass’s policy says the sanction for failing a workplace drug test is always dismissal, because anyone whose abilities are impaired could be a danger to themselves and others while working with gas, large forklifts, furnaces and dangerous chemicals.
That’s why the two manufacturing operators, Nkosinathi Nhlabathi and Zukile Mthimkhulu, were fired after pleading guilty to a charge that they tested positive for dagga at PFG’s Springs plant.
Their first challenge was to a National Bargaining Council for the Chemical Industry arbitrator, Daisy Manzana, who heard from National Union of Metalworkers of SA organiser Zimasile Mkoko that the ConCourt had “taken away the stigmatisation of calling a plant a drug”.
Referring to PFG sales manager Mark Scrivens, who chaired the disciplinary hearing, Mkoko said: “I am not going to waste time with the person who is still uptight in calling a plant a drug.”
PFG has a zero-tolerance policy for any substance that has a mind-altering effect, Scrivens told Prinsloo, because its workplace is dangerous, it has to comply with the Occupational Health and Safety Act and it cannot run the risk of staff who are under the influence negatively affecting colleagues or damaging equipment.
Nhlabathi testified that he tested positive in March 2020 even though it had been three days since he smoked dagga. “Whatever he did with dagga, he did it at home and not when he was at work,” said Prinsloo, summarising his evidence.
Mthimkulu said he was aware of PFG’s alcohol and substance policy, but he said it was silent on dagga, and Mkoko told the arbitrator: “There is no policy that could have dismissed [the men] because there is nothing talking to the issue of the dagga, simply because today dagga in South Africa is legalised.
“It is legalised for an individual to use for personal consumption in his private space, and there is nothing that forbids the individual to come and work.”
It was clear, said Prinsloo, that Nhlabathi and Mthimkulu confused the decriminalisation of dagga for private use and an employer’s right to act against workers who contravened a disciplinary code.
“Mr Mkoko was fixated on the fact that it was no longer a crime to use dagga, and in the process of posing questions he made several misleading statements and propositions which are not to be found in the cases he relied upon,” she said.
“The Constitutional Court did not interfere with the definition of a ‘drug’, nor did it declare dagga or cannabis to be a plant or a herb.”
And the judgment did not offer any protection against disciplinary action if employees contravened company policies or disciplinary codes.
“In my view, it matters not that the [men] used dagga in private, that they posed no danger on the day they tested positive, that their period of employment was not insignificant or that they had a clean disciplinary record,” she said.
“A zero-tolerance policy is one that does not allow any violations of a rule. Dismissal was an appropriate sanction.”
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Published originally on: businessinsider.co.za
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