Testing for dagga use flawed – experts

Out-of-date methods can’t prove person’s high

SHAUN SMILLIE

THE law says it is okay to smoke weed, but a Commission for Conciliation, Mediation and Arbitration (CCMA) judgment has shown that legal dagga users are in danger of being dismissed from work, even when they are not high.

At the heart of the problem is an out-of-date testing method that cannot prove if someone is high at that moment. That method involves urinating into a cup and sending it to a lab for testing and is the main way employers use to test for dagga use.

But it’s flawed, say experts.

A recent CCMA judgment ruled in favour of Durban Wood Chips after it dismissed four employees for testing positive for dagga. The four were given a urine test at work, after claiming they had not smoked dagga while on shift.

Three later challenged their dismissal through the CCMA.

But the problem, points out constitutional law expert Pierre De Vos, is urine testing only proves the person had taken the drug in the last three to 30 days.

“It doesn’t say that person is high at the time the test is done,” he said, adding that the judgment was illegal.

The commissioner in the case noted that while the Constitutional Court declared the private use of cannabis legal, “employers were still entitled to discipline employees who use cannabis or are under its influence during working hours.

“The respondent’s operations indicated that such a prohibition was reasonable and the applicants knew that they were not allowed to report for work while under the influence of cannabis.

“The applicant’s dismissal was therefore fair”, the judgment said.

From reading the judgment, De Vos believes that the commissioner was not aware of the failings of the urine test.

Julian Stobbs and Myrtle Clarke, known as the Dagga Couple, said urine tests have been responsible for a number of workers being dismissed.

“We know of a case where 40 truck drivers were dismissed after testing positive for dagga. We tracked down three of the drivers, but they didn’t want to take the matter up.”

Most companies did not have a drug policy written into contracts, and testing for dagga was sometimes used to get rid of employees they wanted to dismiss, he said. As countries across the globe move to legalise dagga, there is a race to find ways of testing if people are under its influence. In South Africa, law enforcement authorities believe drivers under the influence of drugs other than alcohol is a growing problem.

In a 2008 study, drugs of abuse that excluded alcohol were detected in 14% of drivers stopped at routine roadblock operations.

In Canada, a roadside saliva test has been developed that tests for the presence of THC, the main psychoactive ingredient in cannabis.

The problem with the saliva test, said Clarke, was that it showed up that a person had used marijuana in the last two to six hours.

“What would be best is the use of a cognitive test,” she said. “As we have always said, technology needs to drive the legalisation of dagga.”

Such a test would test if a driver or employee is not cognitively impaired by the drug.

But as for the four employees dismissed, De Vos believes they could take their case to the labour court, and would have a good chance of winning.