- Two employees of a glass factory were fired after testing positive for cannabis and took their case to labor justice.
- They said that the Constitutional Court had ruled that dagga was an herb, not a drug, but the judge said that was not true.
- Liberalizing dagga for private use does not mean that workplace safety regulations can be ignored, Judge Connie Prinsloo said.
- For more stories, visit www.BusinessInsider.co.za.
Two men who tested positive for dagga at work claimed their dismissal was unfair because the Constitutional Court had said that cannabis was no longer a drug, just a plant.
But the judges who unanimously decriminalized the private use of dagga in 2018 said nothing of the sort, Joburg employment tribunal judge Connie Prinsloo ruled last week.
The men’s understanding of the ConCourt’s decision was “very limited or totally incorrect,” said the judge, who dismissed the men’s attempt to review an arbitrator’s decision that their dismissal had been fair.
“They moved from the wrong premise when they approached their case as one in which dagga was no longer to be considered a drug and therefore automatically excluded from [their employer’s] alcohol and drug policy,” he said, accusing the men of being “opportunists.”
PFG Building Glass policy says that the penalty for failing a workplace drug test is always dismissal, because anyone whose abilities are affected could be a danger to themselves and others while working with gas, large forklifts, ovens and dangerous chemicals.
That’s why the two manufacturing operators, Nkosinathi Nhlabathi and Zukile Mthimkhulu, were fired after pleading guilty to one charge that they tested positive for dagga at PFG’s Springs plant.
His first challenge was to an arbitrator for the National Bargaining Council for the Chemical Industry, Daisy Manzana, who heard from SA National Metalworkers Union organizer Zimasile Mkoko that the ConCourt had “removed the stigma of calling a plant a drug.” “.
Referring to PFG sales manager Mark Scrivens, who chaired the disciplinary hearing, Mkoko said: “I’m not going to waste time on the person who is still uptight by calling a plant a drug.”
PFG has a zero tolerance policy for any mind-altering substance, Scrivens told Prinsloo, because his workplace is dangerous, he has to comply with the Occupational Health and Safety Act and he can’t risk staff being under the influence that adversely affects colleagues or damages equipment.
Nhlabathi testified that he tested positive in March 2020 despite three days having passed since he smoked dagga. “Whatever he did with dagga, he did it at home and not when he was at work,” Prinsloo said, summarizing the evidence from him.
Mthimkulu said he was aware of PFG’s alcohol and substance policy, but said he did not say anything about dagga, with Mkoko telling the referee: “There is no policy that I could have ruled out. [the men] because nothing is said about dagga, simply because today dagga in South Africa is legalized.
“It is legal for an individual to use their private space for personal consumption, and there is nothing that prohibits the individual from coming to work.”
It was clear, Prinsloo said, that Nhlabathi and Mthimkulu confused the decriminalization of the dagga for private use and the right of an employer to take action against workers who violated a disciplinary code.
“Mr Mkoko was obsessed with the fact that it was no longer a crime to use dagga, and in the process of asking questions, he made various misleading statements and propositions not found in the cases on which he relied,” he said.
“The Constitutional Court did not interfere with the definition of ‘drug’, nor did it declare dagga or cannabis to be a plant or herb.”
And the ruling offered no protection against disciplinary action if employees violated company policies or disciplinary codes.
“From my point of view, it doesn’t matter that the [men] they used dagga in private, that they did not pose any danger on the day they tested positive, that their period of employment was not negligible, or that they had a clean disciplinary record,” he said.
“A zero tolerance policy is one that does not allow any violation of a rule. The dismissal was an appropriate sanction.”
