The Cannabis for Private Purposes Bill was published in 2018 and updated in August 2020 which decriminalizes the use of cannabis in your private space. The Bill allows South Africans to possess a maximum of 600 grams per person or 1200 grams per household of cannabis. You may also grow the cannabis plant if you adhere to the strict guidelines and quantities. Although the private use of cannabis is now allowed, the issue of being under the influence of cannabis, which is still classified as a drug has not been considered by our Courts yet. Since an individual is now allowed to smoke cannabis legally, it begs the question, may you smoke cannabis and then report for duty the next day?
The CCMA was recently faced with this very same question. The Applicant took his employer to the CCMA on an allegation of unfair dismissal after he failed his drug test at work. He admitted that he smoked cannabis the day before. Smoking cannabis in your private space is now legally allowed, therefore no criminal offence had been committed. The employer’s internal policies together with the employee’s contract stipulated that if a person fails a drug test, a zero-tolerance policy applies which will lead to immediate and automatic dismissal. This company’s policy stated that an employee should not be allowed to be on the premises if he or she was under the influence of any drug. The CCMA ruled that the employee’s dismissal was fair.
The CCMA may have arrived at the wrong decision. This is because the CCMA treated this matter as one similar to being under the influence of alcohol. This may have been the incorrect approach as alcohol traces leave the body fairly quickly, within hours, whilst a urine test can detect traces of cannabis for up to 30 days. Cannabis stays in the body long after a person is no longer experiencing any intoxicating effects from it. An employee that may test positive at a drug test may no longer be intoxicated and/or under the influence of the drug, however, may still strangely be dismissed. This may very well be an infringement on the employee’s rights.
Whilst our Courts and legislators continue to develop the law around the abovementioned practical issues, we foresee that many companies may need to update their outdated policies to account for these recent developments to our law. Companies may need to prepare to put proper and accurate drug tests in place to determine whether employees merely have traces of the drug in their system or whether employees are truly reported to work under the influence of cannabis and therefore intoxicated.
If you need assistance with updating your company policy or simply need assistance with a labour matter or question with regards to the Cannabis for Private Purposes Bill, kindly contact us at BBP LAW ATTORNEYS. We are ready to assist.