R1m for fired worker
APPEAL: WINS DISMISSAL CASE FOR SMOKING DAGGA AFTER WORK
Her company’s zero-tolerance policy was irrational, says Labour Court.
In a groundbreaking judgment, the Labour Appeal Court of South Africa has ordered Barloworld to pay R1 million (or a year’s salary) to a woman who was fired for consuming medical cannabis after hours.
The ruling could prove to be a real game-changer as it finally addresses the thorny issue of being granted the constitutional right to smoke dagga in your private space – but facing dismissal for the presence of the substance lingering in your blood.
The court found last week that the global industrial company’s zero-approach policy to drugs and alcohol was “overbroad” and infringed on employer Bernadette Enever’s right to privacy.
It also ruled that Barloworld’s alcohol and substance abuse policy was “irrational and violates the right to privacy in Section 14 of the Constitution”, to the extent that it prohibits office-based employees who do not work with or within an environment that has heavy, dangerous and similar equipment, from consuming cannabis in the privacy of their home.
The Constitutional Court found in September 2018 that the personal use or cultivation of dagga in one’s private space is not a criminal offence and that not allowing a person to smoke cannabis in private was against the protection of privacy laid down in Section 14 of the Constitution.
The Labour Court ruled that Enever suffered unfair discrimination and that her dismissal was automatically unfair.
Court records show Enever was an office-based category analyst at the time of her dismissal.
She signed an Employee Policy handbook in 2012 which stated that the company may force employees to undergo medical exams after the Constitutional Court’s decision to decriminalise cannabis use for individuals in the privacy of their own homes.
In May 2012, Enever’s doctor prescribed her medication for pain and sleep due to severe anxiety, but she said she suffered side effects, and after the Constitutional Court’s judgment, began using cannabis.
She said it helped reduce her reliance on prescription medication.
Enever said she smoked a joint every night and on weekends, along with the daily use of cannabis-based products such as cannabis oil.
In January 2020, four months before her dismissal, Enever had to undergo a medical test to regain biometric access to the workplace, which included a urine test.
The test results came back positive for cannabis use. After follow-up tests also showed traces of cannabis, she was dismissed.
In her defence, Enever discussed the positives she has noticed from consuming cannabis, namely how she has less anxiety, better sleep and is no longer reliant on side effect-causing medications.
According to court documents, it was also accepted by Barloworld that during her time of testing, she was not impaired in the performance of her duties or suspected of being intoxicated.
After her dismissal, Enever took her matter to the Commission for Conciliation, Mediation and Arbitration but it did not take place due to the Covid pandemic and she then approached the Labour Court.
The National Assembly’s decision to adopt the Cannabis for All Purposes Bill in November 2023 finally stubbed out a fiveyear-long lull which followed the groundbreaking 2018 Prince judgment of the Constitutional Court decriminalising the private use of cannabis.