In a 2018 judgement by way of the Constitutional Courtroom, the easiest Courtroom within the land successfully decriminalised the non-public use, cultivation and ownership of marijuana by way of stating that individual provisions underneath the Medication and Trafficking Act No.140 of 1992 and the Drugs and Comparable Substance Regulate Act No. 101 of 1965 have been inconsistent with the suitable to privateness entrenched within the Charter, and have been due to this fact invalid to the level that they made the non-public use, cultivation or ownership of hashish a felony offence.
For the reason that “decriminalisation” of the non-public use of hashish, no longer all of a sudden, the Labour Courtroom used to be not too long ago required to decide whether or not the dismissal of 2 workers who examined sure for hashish within the place of business used to be substantively truthful. Relating to NUMSA obo Nhlabathi and 1 Different v PFG Development Glass (PTY) Ltd (JR 1826 /2020)  ZALCJHB 292 (1 December 2022) (the PFG case) two workers examined sure for hashish while on responsibility and have been topic to a disciplinary listening to having regard to the employer’s 0 tolerance coverage on alcohol and drug abuse. The workers each pleaded accountable to the price of checking out sure for hashish whilst within the place of business and have been due to this fact disregarded.
The workers due to this fact referred an unfair dismissal dispute to the CCMA alleging that their dismissal used to be substantively unfair at the foundation that, inter alia, the Constitutional Courtroom had decriminalised the usage of hashish.
The employer’s case on this regard centred round the truth that its 0 tolerance coverage used to be specifically necessary bearing in mind the hazardous surroundings wherein it operates, and that the Constitutional Courtroom had simplest decriminalised the non-public use of hashish however that the place of business used to be topic to the well being and protection laws set out within the Occupational Well being and Protection Act No.85 of 1993.
The arbitrating commissioner held that the dismissal of the workers used to be substantively truthful. The workers, unsatisfied with this consequence, took the arbitration award on overview on the Labour Courtroom, ensuing within the PFG case. In line with the standard check for overview of a CCMA award, the Labour Courtroom regarded as each and every criticism raised by way of the workers and located no advantage to each and every of the grounds. Importantly the Labour Courtroom discovered that the Constitutional Courtroom judgement does no longer be offering any coverage to workers towards disciplinary motion will have to they act in contravention of corporate insurance policies or disciplinary codes. The overview used to be accordingly disregarded by way of the Labour Courtroom.
This situation demonstrates that however the decriminalisation of the non-public use, ownership or cultivation of hashish, workers is also disregarded for checking out sure for hashish whilst within the place of business, having regard to the character of the place of business, only if the employer has followed a coverage prohibiting the usage of medication within the place of business and that its workers were made acutely aware of such coverage.
Kerry Fredericks and Bradley Workman-Davies at Werksmans Lawyers.