Fatshimetrie, the company that fired an employee for using marijuana at home in the evening, had to pay her compensation equivalent to two years’ salary after the Employment Appeal Tribunal ruled that she was fired from her job. unfair way.
The employee in question, Bernadette Enever, worked in an office at Barloworld Equipment, a division of Barloworld, which supplies and services large equipment for mining and civil engineering projects.
The company has a zero tolerance policy towards alcohol and drugs, but the Employment Appeal Tribunal found there was “no rational connection” between maintaining workplace safety and which amounts to prohibiting the use of personal cannabis by all its employees in the privacy of their homes.
During a routine medical examination in 2020, Enever tested “non-negative for cannabis during work hours”, leading to her termination.
She uses marijuana at home in the evenings as an alternative to medication prescribed by her doctor to help relieve pain and severe anxiety, but which had side effects. This history has not worked in its favor with Barloworld. Additionally, the fact that she worked in an office without hazardous equipment was also not taken into account. Because the company had a zero-tolerance policy toward drugs and alcohol, she was fired when she said she would not give up her daily marijuana intake.
The employment tribunal upheld her dismissal, but she challenged the outcome at the employment appeal tribunal. This decision, rendered on April 23, declared his dismissal unjust and ordered compensation. This is a potentially very significant result and means that many employers will need to rethink any policies prohibiting after-hours cannabis use by their staff.
The judges were well aware of the likely consequences of their decision in this case, and they stated from the outset that the main issue at stake was “the impact…on workplace discipline” of the constitutional court’s decision to decriminalize the private cultivation, possession and use of marijuana by adults in the case of Minister of Justice and Constitutional Development and Others v. Prince.
It was a condition of employment at Barloworld Equipment that staff could be subject to medical examinations in the workplace. Additionally, the use and possession of alcohol in the workplace was prohibited, and anyone “under the influence of alcohol and/or drugs” was also prohibited from entering the workplace.
Random checks are carried out, and tests are also carried out during annual medical examinations, pre-employment tests, after “incidents” at work, etc.. An employee who tests “positive or non-negative” will undergo a second confirmatory test. If it is still positive or not negative, the employee is sent home for seven days and retested. A positive result results in disciplinary action in accordance with the company’s zero-tolerance approach.
Enever was retested several times, but because she didn’t stop smoking in the evening, all the results were positive. She pleaded guilty at a disciplinary hearing and explained the medical reasons why she continued to smoke in the evenings. She was summarily fired after the president said it would be pointless to give her a final written warning because she claimed she had the right to use cannabis and did not want to stop.
The company did not dispute the fact that at work, she was not unfit to perform her duties, nor that she was suspected of being intoxicated. Additionally, she did not operate dangerous machinery or drive for the company.
When the employment tribunal upheld her dismissal, it said the company had valid grounds for dismissing her, based on her “deliberate breach” of its policy. And that the decriminalization of marijuana use changed nothing since it had violated company policy.
At the Employment Appeal Tribunal, things happened differently.
Enever claimed she was discriminated against on arbitrary grounds. Her privacy rights were violated, and she was subjected to “a humiliating process portraying her as a drug addict”, all despite both parties agreeing that her duties were not affected by her use. of marijuana in the evening.
Writing for a unanimous court, Justice Dunstan Mlambo said that although the Prince case did not deal with employment law issues, the scope of the decision affected the privacy rights of all employees.
Barloworld justified its policy on the grounds that it was necessary to comply with the Health and Safety at Work Act. By extension, this was also the company’s justification for limiting what Enever can do in its own private life after work hours.
“I do not find this a justifiable reason for the infringement of […
Thus, this case illustrates the need for companies to review their internal policies and consider evolving court rulings regarding employee rights. It is essential to strike a balance between protecting workplace safety and respecting individual rights and freedoms, particularly with regard to issues such as drug use outside of working hours. This raises important questions about the limits of employers’ ability to impose strict zero-tolerance policies and highlights the complexity of the issues surrounding the use of legal drugs for medical purposes. These cases thus contribute to the development of labor law and to guarantee fair protection of employees’ rights in delicate situations like this.