Dismissed doper loses court bid

A long-serving employee who was fired after repeatedly testing positive for cannabis, in breach of the company’s rules, has failed in her bid to be reinstated.

Bernadette Enever, who had been employed in an office position at Barloworld Equipment since 2007, said she used cannabis oil for medicinal reasons and smoked it recreationally for “spiritual” reasons.

She wanted the Labour Court to declare her dismissal in April 2020 to be grounded in “unfair discrimination” and automatically an unfair dismissal.

But Johannesburg Labour Court Acting Judge Makosho Ntsoane dismissed her application, saying the company treated all employees the same. If Enever needed to use cannabis for medicinal purposes, she should have presented evidence of that. Instead she had only made the claim after she had been caught out.

The judge said Enever had an unblemished disciplinary record when she first tested positive in January 2020. Enever told of how at one stage, due to various ailments, she was taking up to 10 prescription drugs a day.

Following the decriminalisation of cannabis for personal use by the Constitutional Court, she had weaned herself off the pills using cannabis oil. She also smoked rolled cannabis every evening to assist with insomnia and anxiety, which had improved her “bodily health, outlook and spirituality”.

The judge said the company had a zero tolerance policy on alcohol and drugs and required employees to undergo tests. When Enever had first tested positive, she was placed on “cleaning up” leave and the test was to be repeated weekly until she tested negative.

Enever continued to fail the weekly tests for a month and she was charged with breaching the company’s alcohol and substance abuse policy. Following a hearing, she was fired, the chair indicating there was no point in giving her a final written warning as she had refused to give up consumption of cannabis.

Enever, in her case before the Labour Court, claimed the policy was unfair and discriminatory.

Judge Ntsoane said she was aware of the policy. “Everyone is entitled to use cannabis in their own space for recreational purposes. Similarly everyone is entitled to consume alcohol in their own private space and time.

“This does not mean that if an employee who consumed alcohol the previous night tests positive, the (company) would have to take cognisance of the fact that alcohol was consumed in the employee’s private space and time. It also does not matter that (Enever) was not impaired when she tested positive. She has to comply with rules.” –