Seshni Moodley | Attorney | Moodley Attorneys Inc. | mail me |
Whether you are a business owner or responsible for Human Resources (HR), the issue of cannabis use among employees will likely arise at some point. According to research released by the United Nations in 2020, about 3% of the South African population reported Cannabis use. That equals roughly 2 million people.
If we go further back, the Medical Research Council estimated around 2.2 million users in 2004. That figure predates softer regulations. Therefore, current numbers are likely higher. This raises an important question for employers about the rules of cannabis in the workplace.
The legal landscape before and after 2018
Before 2018, South African law criminalised cannabis use and possession. The legal position prohibited both private use and possession. However, the rules of cannabis changed significantly after 2018. Employers now operate in a more complex legal environment shaped by constitutional rights and labour law.
The Prince case
The legal landscape shifted after the Constitutional Court ruling in Minister of Justice and Constitutional Development and Others vs Prince. The case challenged cannabis criminalisation.
The court relied on the constitutional right to privacy in section 14 of the Constitution. The court confirmed that laws criminalising private cannabis use violate the Constitution. As a result, the judgment decriminalised private use, possession, and cultivation. It linked this outcome directly to the right to privacy. Importantly, the rules of cannabis began to shift from criminal law to constitutional and workplace regulation.
On 28 May 2024, Parliament enacted the Cannabis for Private Purposes Act (Cannabis Act). The Act permits adults to use Cannabis for private, recreational purposes. However, it limits use to private settings.
Private use and the workplace question
This creates a key question. What happens when “private settings” overlap with the workplace? At this point, the rules of cannabis become central to employer decision-making.
The Nkosi case
In Nkosi and another vs Merchants SA (Pty) Ltd t/a Dimension Data Company, the Commission for Conciliation, Mediation and Arbitration (CCMA) reviewed the dismissal of two call centre employees.
Both employees tested positive for cannabis. However, they worked in non-safety-sensitive roles. They also showed no signs of impairment at work. The Commissioner found the dismissals substantively unfair. The ruling distinguished between testing positive and being under the influence.
The CCMA also considered the lingering nature of Cannabis in the bloodstream. It stressed that employers must assess actual impairment or risk, not mere detection. As a result, the employees were reinstated without back pay. The Commissioner noted partial responsibility due to policy non-compliance.
This case reinforced the rules of cannabis in workplace discipline, especially around impairment versus presence.
Taken together, these authorities establish three legal principles for employers:
- The constitutional right to privacy protects lawful private Cannabis use;
- Employers may enforce workplace safety rules and restrict impairment at work; and
- Positive drug tests alone do not always prove impairment, especially in non-safety-sensitive roles.
Implications for employers
Employers may enforce workplace policies that restrict drug use, including cannabis. However, they must apply the rules of cannabis carefully and consistently.
-
Policy clarity
Policies must clearly distinguish impairment from the presence of THC in the bloodstream. Vague rules increase legal risk.
-
Context sensitivity
High-risk industries may justify stricter policies. Office environments require more balanced approaches that respect privacy rights.
Proof of impairment
Employers must prove impairment or risk. They cannot rely only on positive test results. Instead, they should use behavioural observation and validated impairment testing. Biological testing must link to job risk and policy design.
-
Disciplinary fairness
Employers must follow fair procedures. They must consider mitigating factors such as prior conduct and policy awareness. Consistency also matters.
-
Zero-tolerance limits
The Nkosi judgment shows that zero-tolerance policies must match job risk. Employers must demonstrate impairment or operational risk. Otherwise, dismissal based only on testing may be unfair. This remains a key aspect of the rules of cannabis in labour law.
The rules of cannabis depend heavily on workplace risk
In Mthembu and Others vs NCT Durban Wood Chips, the CCMA upheld dismissals of employees who tested positive for cannabis. The employees worked in a hazardous environment. The employer applied a strict zero-tolerance policy.
The Commissioner acknowledged that the Constitutional Court had legalised private cannabis use. However, employers may still discipline employees who are impaired at work.
The CCMA found that the employer’s prohibition was reasonable. Employees also understood they could not report for duty under the influence. This case confirms that the rules of cannabis depend heavily on workplace risk.
The Labour Appeal Court in National Union of Metalworkers of South Africa obo Nhlabathi and Another vs PFG Building Glass reinforced this approach. It confirmed that consistent zero-tolerance policies are valid in hazardous workplaces.
Dismissals involving a category analyst
In Enever vs Barloworld Equipment, the Labour Appeal Court reviewed a dismissal involving a category analyst. The employee signed a zero-tolerance drug and alcohol policy. She also agreed to random drug testing. A test returned a positive Cannabis result.
The employer dismissed her for breaching policy. However, the Labour Appeal Court found that employers must respect privacy rights. It ruled that employees may use cannabis in private time. The court also linked workplace policies to the Occupational Health and Safety Act.
The judgment further held that:
Within this context of the right to privacy, I can think of no more irrelevant fact to the employer in this case than the Appellant enjoying a “joint” during her evenings in the privacy of her home. The use of a blood test alone without proof of impairment on the work premises is a violation of the Appellant’s dignity and privacy. This policy prevents her from engaging in conduct that is of no effect to her employer, yet her employer CAN force her to choose between her job and the exercise of her right to consume cannabis. The Respondent has not shown that she was “stoned” or intoxicated at work, as a result, that her work was adversely affected or that she created an unsafe working environment for herself or fellow employees.
Practical next steps for employers
- Review workplace substance policies and align them with the rules of cannabis, the Cannabis Act, OHSA, and labour law.
- Conduct role-based risk assessments and document justification for any zero-tolerance rules.
- Implement impairment-based testing and train managers on behavioural indicators.
- Ensure POPIA compliance when handling health or testing data.
- Seek legal advice before disciplining employees based only on positive tests.
- Align policies with operational context and evolving case law, especially around the rules of cannabis.
In conclusion
The legalisation of cannabis for private use creates both opportunity and complexity in the workplace. Employers must balance employee rights with safety and productivity. Clear, fair and context-sensitive policies provide the best protection. In doing so, employers can navigate the rules of cannabis effectively while reducing legal and operational risk.
