In the legal landscape, the case of NUMSA obo Nhlabathi and 1 Other v PFG Building Glass PTY Ltd JR 1826-2020 2022 ZALCJHB 292 has spotlighted an employer’s prerogative to enforce a zero-tolerance stance on drugs and alcohol in the workplace, leading to the termination of employees found positive for cannabis during work hours.

The involved parties in this case were the Applicants, manufacturing operators employed by PFG Building Glass (Pty) Ltd, and the Respondent. The crux of the matter rested on the Applicants’ alleged breach of the employer’s disciplinary code, as they were found to be under the influence of cannabis while on duty, prompting their dismissal.

Despite the Applicants’ argument that cannabis, or ‘dagga,’ is a plant and not a drug, and that its private consumption is legal post a Constitutional Court judgment, the employer, PFG Building Glass, maintained its zero-tolerance policy due to safety concerns in a hazardous working environment. The Respondent emphasized that substances with mind-altering effects pose a significant risk in their workplace, where heavy glass is manufactured, dangerous equipment is operated, and hazardous chemicals are present.

The Applicants contested their dismissal, first at the National Bargaining Council for the Chemical Industry and later at the Labour Court (LC), arguing that their use of cannabis in private did not violate the employer’s policy. However, the LC upheld the arbitrator’s decision, stating that the dismissal was substantively fair based on several grounds, including the validity and reasonableness of the employer’s drug and alcohol policy.

The LC underscored that the Constitutional Court judgment legalizing private cannabis use did not absolve employees from adhering to workplace policies. The Court affirmed that the employer’s policy, given the hazardous nature of its business, was justifiable. It noted that the Applicants were aware of the policy and, by testing positive for cannabis during work hours, had breached it. The LC emphasized that an employer’s right to take disciplinary action is distinct from the decriminalization of private cannabis use.

Crucially, the Court clarified that an employee’s private consumption of cannabis or alcohol does not exempt them from disciplinary action if found under the influence at work. Employers, it stressed, have the right to enforce policies consistently across all employees, irrespective of private actions.

This case serves as a benchmark for employers, highlighting the key considerations in dismissals related to zero-tolerance drug and alcohol policies. The crucial takeaway is that such policies must be not only fair and reasonable but also uniformly applied to ensure the substantiative fairness of dismissals. Employers are reminded that, despite evolving legal landscapes, adherence to well-crafted and consistently implemented policies remains paramount.

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