Can an employer dismiss an employee for using cannabis outside working hours?
By Shelton Mahandana
As cannabis legalization continues to evolve globally, questions arise regarding its impact on the workplace, particularly regarding employee conduct outside working hours. Let’s explore whether an employer can dismiss an employee for using cannabis outside working hours, supported, or not supported by case law.
Legal landscape surrounding cannabis has undergone transformation with the landmark judgement in the case of Minister of Justice and Constitutional Development v Prince ZACC 30. The Constitution Court ruled that adults have the right to cultivate and use cannabis in private for personal consumption. This decision decriminalized the possession and use of cannabis by adults in private spaces.
Despite the legalization of cannabis for personal use, employers retain the right to enforce workplace policies and regulations. Workplace policies typically prohibit the use of intoxicating substances that may impair job performances or pose safety risks. However, the question arises whether an employer can discipline or dismiss an employee for using cannabis outside working hours, especially if it does not impact job performance or workplace safety.
The following cases have addressed the dismissal of employees for cannabis use outside working hours:
Duncanmec (Pty) Ltd v Gaylard (2018), in this case the Labour Appeal Court ruled that an employee’s dismissal for testing positive for cannabis during a routine drug test was unfair. The court emphasized that the dismissal was disproportionate to the offense, as the employee’s cannabis use did not affect his job performance or endanger others.
National Union of Metalworkers of South Africa obo Manakali v Dunlop Mixing and Technical Services (Pty) Ltd (2018) similarly, the Labour Court held that an employee’s dismissal for testing positive for cannabis metabolites in a post-accident drug test was unfair. The court emphasized the lack of evidence linking the cannabis use to the accident and the absence of workplace policies specifically addressing cannabis use outside working hours.
Law protects individuals’ rights to use cannabis in private for personal consumption, the issue becomes complex when considering its implications in the workplace. Employers must balance their duty to maintain a safe and productive work environment with employees’ rights to privacy and personal autonomy. Dismissing an employee solely for using cannabis outside working hours is unfair if it does not impact job performance or workplace safety.
However, each case must be evaluated based on its individual circumstances, including workplace policies, job requirements and the nature of the employees’ conduct. Employers are encouraged to establish clear policies and procedures regarding substance use in the workplace to mitigate potential conflicts and ensure fair treatment of employees.
