In National Union of Metalworkers of South Africa obo Nyawuza / PFG Building Glass [2024] 6 BALR 595 (NBCCI), the National Bargaining Council for the Chemical Industry (NBCCI) considered an unfair dismissal dispute.
The dispute concerned an employee who was dismissed for misconduct after testing positive for cannabis in his system.
Facts
The employee was a manufacturing operator at PFG Building Glass Proprietary Limited (PFG). He had taken a routine alcohol test when reporting for work. He tested positive for cannabis. PFG operates as a glass manufacturer. The company had no specific policy on cannabis use but had a general drug and alcohol policy. The employee had a valid final written warning for alcohol usage.
PFG contended that it had a zero-tolerance policy approach to drug usage. It further contended that the employee should have known about this policy. PFG also stated that the workplace was dangerous. The employee worked for six days after the positive cannabis test result before being suspended. During this period, he performed his duties without any reported issues or evidence of impaired performance.
PFG’s alcohol and drug policy prohibited:
- The consumption of alcohol or drug use while on duty, including breaks and mealtimes.
- Employees from reporting to duty while under the influence of alcohol or illegal drugs.
The employee was dismissed for misconduct after testing positive for cannabis while within the workplace. He contested his dismissal by filing an unfair dismissal dispute with the NBCCI. He sought retrospective reinstatement.
Cannabis use
During arbitration, the employee’s representative argued that the zero tolerance policy did not specifically address cannabis use. This was especially relevant after the legalisation of private cannabis use.
PFG’s representative maintained a zero-tolerance policy approach to substance use. They argued that the positive test result violated this rule, justifying dismissal.
Under PFG’s policy, any violation typically led to immediate dismissal. When asked if the employee posed any danger to the workplace after the positive test, PFG conceded that his conduct was not irregular.
PFG could not explain why cannabis is not classified like narcotics. The employee noted that when an employee is found intoxicated, a re-test is conducted. However, this process only applies to alcohol, not drugs or cannabis.
NBCCI findings
The NBCCI Arbitrator noted that PFG did not provide evidence that the employee’s low THC level impaired his duties. There was no evidence that it posed an immediate threat to safety.
The arbitrator also pointed out that PFG allowed the employee to continue working for six days after the positive result. This weakened the argument that his presence posed a safety risk.
The NBCCI Arbitrator concluded that PFG failed to prove that the dismissal was fair or proportionate. The arbitrator also found that PFG’s zero tolerance policy did not account for the decriminalisation of cannabis. It was incumbent on PFG to outline restrictions on cannabis use by employees outside working hours. This directly impacted the workplace rule since cannabis stays in the system for 2-3 days.
Although cannabis remains in the system for 2-3 days, the employee continued to perform his work. The employee did not act in a manner that posed a threat to PFG’s workplace. The cannabis level in his system was not mind-altering. The NBCCI Arbitrator was unconvinced that the facts warranted dismissal. The sanction of dismissal was considered too harsh, and alternatives should have been explored.
Importance of the case
The NBCCI’s award highlighted two key points. First, employers must provide specific evidence linking substance use to performance or safety risks when considering dismissal. PFG’s failure to respond to this, especially after allowing the employee to work for six days, was significant.
Second, employers must update workplace policies to reflect legislative changes, particularly regarding substances like cannabis. Employers should ensure their policies are clear, fair and properly communicated.
The NBCCI arbitrator’s reliance on the absence of case law signals a legal grey area. This suggests a need for employers to develop clear policies on cannabis regulation inside and outside the workplace. These policies must account for internal screenings and potential impacts.
Jacques van Wyk | Director | Werksmans Attorneys | mail me |
