A recent CCMA (Commission for Conciliation, Mediation and Arbitration) ruling, in which an employee’s dismissal for smoking cannabis before work was set aside and he was re-instated, has garnered a lot of media attention.
Unfortunately, some of the resultant articles and headlines may have given the inaccurate impression that employees are now free to report for duty under the influence of the intoxicant. In fact, although the employee in question was indeed re-instated, he was still held to be in the wrong, and sanctioned with denial of back pay and a 12-month final written warning.
Moreover, a previous (2018) CCMA ruling had confirmed the dismissal of employees in broadly similar circumstances.
It seems that each case will be treated on its own merits so let’s compare the facts in these two matters –
2018: Dismissal upheld
- Employees in a particularly dangerous workplace environment (involving heavy machinery, vehicles, and timber and hence a risk of fatality), had a zero-tolerance policy when it came to workplace safety and substance abuse.
- All employees were tested for cannabis use and four who tested positive were dismissed after admitting that they had smoked the drug at home. They knew of the zero-tolerance policy and of the dismissal risk for contravening it.
- Their dismissals were upheld by the CCMA as being an appropriate sanction in the circumstances.
2020: Dismissal too harsh
- An employer’s Code of Conduct and Discipline prohibited anyone from working under the influence of alcohol or drugs, a policy strictly enforced as a compliance issue under the Occupational Health and Safety Act. The Code recommended dismissal for even a first offence.
- An employee (a “picker” in a cosmetics and fragrance business) arrived late for work with red and watery eyes, tested positive for cannabis use and admitted having smoked a “zol” (cannabis cigarette) some two hours before reporting for work.
- After a disciplinary hearing he was dismissed, but the CCMA re-instated him on the basis that although he had tested positive for cannabis there was no evidence that his ability to perform his work had been affected. Indeed, his employer had allowed him to remain at work that day, albeit in a “safe” environment. “The problem with a charge of being under the influence of drugs” said the Commissioner “is that there has not been any scientific method of determining whether a person is under the influence of the drug such that there is an impairment in their performance.”
- “In the circumstances dismissal was too harsh and was not an appropriate sanction”. As mentioned above the employee was not let off the hook but his sanction was reduced from dismissal to loss of back pay and a final written warning. This on the basis that he was aware of the policy prohibiting the use of drugs on duty and “It was irresponsible to take a substance that may have the ability to impair his mental or physical abilities.”
Clearly every case will be different, but at the very least employers should have in place workplace policies appropriate to their particular business conditions and requirements.