In a 2018 judgement through the Constitutional Court docket, the easiest Court docket within the land successfully decriminalised the non-public use, cultivation and ownership of marijuana through stating that exact provisions beneath the Medication and Trafficking Act No.140 of 1992 and the Medications and Similar Substance Keep watch over Act No. 101 of 1965 have been inconsistent with the correct 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 legal offence.
For the reason that “decriminalisation” of the non-public use of hashish, now not all of a sudden, the Labour Court docket used to be lately required to resolve whether or not the dismissal of 2 staff who examined sure for hashish within the administrative center used to be substantively truthful. In terms of NUMSA obo Nhlabathi and 1 Different v PFG Construction Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) (the PFG case) two staff 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 in charge to the price of checking out sure for hashish whilst within the administrative center and have been due to this fact pushed aside.
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 Court docket 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 essential taking into consideration the hazardous atmosphere by which it operates, and that the Constitutional Court docket had best decriminalised the non-public use of hashish however that the administrative center used to be topic to the well being and protection regulations 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 result, took the arbitration award on evaluation on the Labour Court docket, ensuing within the PFG case. Based on the standard check for evaluation of a CCMA award, the Labour Court docket regarded as every grievance raised through the workers and located no advantage to every of the grounds. Importantly the Labour Court docket discovered that the Constitutional Court docket judgement does now not be offering any coverage to staff towards disciplinary motion must they act in contravention of corporate insurance policies or disciplinary codes. The evaluation used to be accordingly pushed aside through the Labour Court docket.
This situation demonstrates that however the decriminalisation of the non-public use, ownership or cultivation of hashish, staff is also pushed aside for checking out sure for hashish whilst within the administrative center, having regard to the character of the administrative center, only if the employer has followed a coverage prohibiting the usage of medication within the administrative center and that its staff were made acutely aware of such coverage.
Kerry Fredericks and Bradley Workman-Davies at Werksmans Legal professionals.
