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Johan van Deventer - Cannabis in the workplace?

What if your employee is training as a traditional healer that requires them to use cannabis?

According to Section 6 of the Employment Equity Act (EEA), unfair discrimination based on various grounds, including religion and culture, is prohibited. However, discrimination may be justified if it is an inherent requirement of the job or if affirmative action measures are taken.

In 2018, the Constitutional Court in the matter of Minister of Justice and Constitutional Development and Others v Prince [2018] (6) SA 393 (CC), effectively legalised the private cultivation, use, and possession of cannabis for private purposes, in private places, for personal consumption. The impact of the decision in workplaces was unclear and arbitrators tended to find that employers were entitled to set workplace policies regarding substance abuse, including the use of cannabis. This approach was recently confirmed in the Labour Court judgment of Marasi v Petroleum Oil & Gas Corporation of SA (SOC) Ltd (2023) 44 ILJ 2261 (LC).

The employee was employed by PetroSA as a teleco technician. In April 2019, he informed PetroSA of his intention to embark on an 18-month traditional healer training programme, which
required him to be transferred from the Cape Town branch to the Mossel Bay factory. This was permitted by PetroSA on condition that he be declared medically fit. PetroSA had a substance-abuse policy the purpose of which was to ensure a safe working environment and the health of its employees, as well as to comply with safety legislation. To those ends, strict adherence to the processes for entry to and operation in the refinery was required. In terms of the policy, employees testing above the cutoff limit for any substance in a laboratory test would be deemed unfit for duty until such time as they tested either negative or under the cut-off level.

The employee had to undergo a medical assessment when he arrived in Mossel Bay. The assessment found that the employee had high levels of cannabis in his system, which exceeded the limit in the policy. Further tests confirmed the existence of cannabis in his system, which was above the acceptable limit. The employee was then declared unfit for duty and blocked from entering the premises until he provided a test that was either negative or below the permissible limit.

He argued that cannabis use was part of his training programme and lodged a complaint against
his treatment. Although the matter was resolved and the employee returned to work after a medical assessment showed that he abided by the employer’s policy, he said that his treatment
constituted unfair discrimination based on culture in contravention of the Employment Equity Act (EEA). He also argued that the policy was outdated and conflicted with the Constitutional
Court’s decision in Minister of Justice and Constitutional Development and Others v Prince, which legalised cannabis for personal use.

The court identified the factual issues as being whether he had been suspended, whether the employer had reasonably accommodated him, and whether the job that he did required that
he be prevented from entering the workplace when he tested over the applicable limit for cannabis in terms of the policy.

Labour court finding: –

Inherent requirement of the job – It was found that the testing requirement in the policy was reasonable given the employer’s working environment and that it was in line with the health and safety legislation applicable to the sector.

Unfairly discriminatory – The need to test employees to ensure that no employee entered a petrochemical plant above the limits set by a policy, in line with international standards, meant that there was no basis for the court to find the policy unfairly discriminatory.

Unfair suspension – The court accordingly found that PetroSA’s requirement for the employee to vacate the workplace did not amount to an unfair suspension, but a reasonable application
of company policy. Although the principle of reasonable accommodation was not directly relevant, since the court had found that the employer had not discriminated against the employee on the grounds of his cultural practices, the employer had accommodated the employee in the broader sense of the term, and that accommodation had been reasonable.

The use of cannabis is no longer illegal for private use, but the Labour Court said that the employer is still permitted to regulate its use, especially if it affects the employment environment. It is recommended that employers review their substance abuse policies to align with the evolving regulatory environment applicable to cannabis use. In the absence of a clear rule, employees may test the boundaries of their newfound rights.

Contact LabourNet now or for additional information, view our socials – Facebook, LinkedIn, Instagram and YouTube.

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 Johan van Deventer Cannabis in the workplace.pdf

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