Regulating cannabis at the workplace
Case: Marasi v Petroleum Oil and Gas Corporation of South Africa (C219/2020) [2023] ZALCCT 34 (27 June 2023)
Facts: In 2018, the Constitutional Court in the matter of Minister of Justice and Constitutional Development and Others v Prince [2018] (6) SA 393 (CC), effectively legalised the private cultivation, use and possession of cannabis for private purposes, in private places, for personal consumption.
Since the finding, the legislative framework remained uncertain due to delays in the finalisation of the Cannabis for Private Purposes Bill that is intended to regulate private consumption.
The impact of the decision in workplaces was unclear and arbitrators tended to find that employers were entitled to set workplace policies regarding substance abuse, including the use of cannabis. This approach was recently confirmed in the Labour Court judgment of Marasi v Petroleum Oil and Gas Corporation of South Africa, dated 27 June 2023.
In the case under discussion, the Applicant (Marasi) was employed by Respondent (PetroSA) as a teleco technician. In April 2019, Marasi informed PetroSA of his intention to embark on an 18-month traditional healer training programme, which required him to be transferred from the Cape Town branch to the Mossel Bay factory. This was permitted by PetroSA on condition that Marasi be declared medically fit.
As such and before being transferred, Marasi underwent a medical assessment, in which he revealed his use of cannabis pursuant to his traditional healer training and he then tested positive for cannabis use in a drug screening. Futher tests after Marasi’s transfer found that the levels of cannabis in his blood surpassed the permitted threshold in terms of PetroSA’s drug and alcohol policy. Marasi was denied access to the factory and deemed unfit to report for duty, until such time that he tested below the permissible threshold.
Marasi argued that PetroSA’s Alcohol and Substance Abuse policy unfairly discriminated against him and the cannabis using community. On the other hand, PetroSA denied any act of discrimination and argued that the policy was necessary to maintain health and safety in the workplace.
According to Section 6 of the Employment Equity Act (EEA), unfair discrimination based on various grounds, including religion and culture, is prohibited. However, discrimination may be justified if it is an inherent requirement of the job or if affirmative action measures are taken.
The court examined whether the policy’s testing requirement was an inherent job requirement. Considering the nature of PetroSA’s work environment (the exploration of oil and gas), and the health and safety requirements in law, the Court found that testing negative for substances was necessary for all employees in a hazardous work environment and was aligned with health and safety legislation.
The court concluded that the policy did not amount to unfair discrimination.
Conclusion
The court accordingly found that PetroSA’s requirement for Marasi to vacate the workplace did not amount to an unfair suspension, but a reasonable application of company policy
