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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which deals with "Q & A - Dagga and the workplace" in the light of the recent Constitutional Court's judgment decriminalising the private use of cannabis (we have used the commonly known term 'dagga' in this newsletter).

We also discuss three new cases: The first case summarises the recent Constitutional Court's dagga judgment. The second case, a Labour Court judgment, concerns a different take on inconsistency. The third case, also a Labour Court judgment, deals with proof of incompatibility.

This public newsletter is a free edited version of the subscriber newsletter.


The legalisation of private dagga use

In 2017, in the case of Prince v Minister of Justice [2017] ZAWCHC 30; 2017 (4) SA 299 (WCC), the High Court held that both sections 4 and 5 of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) needed to be amended to ensure that they did not apply to persons "who use small quantities of cannabis for personal consumption in the privacy of a home, as the present position unjustifiably limits the right to privacy". The High Court stated that it is Parliament that should determine the extent of what would constitute small quantities in private dwellings. The High Court suspended the order of invalidity for a period of 24 months from 31 March 2017.

Because the High Court found that parts of the Drugs Act were unconstitutional, the matter was referred to the Constitutional Court to consider an order of constitutional invalidity. The Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince (CCT108/17) [2018] ZACC 30 (18 September 2018) has now decriminalised the possession and cultivation of cannabis in private by adults for personal private consumption. The Court relied on the right to privacy to reach this result. Although the order was suspended until Parliament can fix the defects in the current law, the Court provided interim relief that will make it unlawful for the police to arrest adults who privately cultivate, possess or use relatively small amounts of cannabis. The effect of this is that an adult person may use or be in possession of cannabis in private for his or her personal consumption in private.

This ruling does not extend to the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons. The ruling also does not extend to the cultivation or possession of cannabis with the intention of selling it. This means that it is still a criminal offence to grow dagga commercially or to deal in dagga.

Does this impact on the workplace? We explore this question and related issues in the Article in this Newsletter - see below.

A new take on inconsistency

When we think about consistent treatment, we usually think about consistency between different employees, but the recent case of JDG Trading (Pty) Ltd t/a Supply Chain Services v Myhill NO and Others (JR958/16) [2018] ZALCJHB 287 (11 September 2018) recognises that a single employee can also be treated inconsistently.

The origin of the consistency factor comes from the Code of Good Practice: Dismissal in Schedule 8 to the LRA, which says (para 7(b)(iii) that any person who is determining whether a dismissal for misconduct is unfair should consider a number of factors, including "whether the rule or standard has been consistently applied by the employer." Para 3(6) also states as follows:

"The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration."

The consistency principle was tested in this case in these circumstances: An employee travelled a lot in the execution of his duties and was issued with a company credit card in order to pay for certain expenses incurred during business trips. The employee was aware that there was a credit card policy in place which regulated the use of the credit card.

On many occasions during the period June 2015 to July 2015, the employee used his company credit card to buy lunch and/or dinner when he was already at home or close to his house before lunch or dinner time, and exceeded the amounts allowed for the purpose of paying for lunch or dinner. On one occasion, the employee bought cigarettes and claimed it as breakfast. The employee said that he interpreted the provisions of the credit card policy to the effect that he was entitled to use the credit card to buy lunch and dinner on days that he travelled in excess of 150 kilometres, even if he was back home at lunch or dinner time or before. He also alleged that, apart from the buying of cigarettes, which he claimed was a mistake, he did nothing wrong in that his former managers were aware that he used the credit card in this manner and they approved his usage in this manner.

The employee was dismissed following these allegations of misappropriation of company funds, in that he used his company credit card for purchases that he was not entitled to and which led to the employer suffering a loss of R1028.40 over the period June 2015 to July 2015.

When the matter was referred to the CCMA, the commissioner held that the dismissal was unfair. This assessment was based on the evidence that while the employee had used his credit card in contravention of the policy for a significant period and time and, despite him having disclosed his use of his card to two managers, he was never reprimanded by either of them. The commissioner found that the employer had acted inconsistently and found that the dismissal of the employee was not the appropriate sanction for contravention of the credit card policy. The employer had failed to prove that it had a good reason to dismiss the employee.

On review in the Labour Court, it was recognised that whilst inconsistency is normally decided in the context of inconsistent application of discipline between different employees, it can take place in the context of inconsistent application of a rule to a single employee. An employer acts inconsistently by not enforcing a rule at a prior point in time, only to enforce it thereafter, without warning, in respect of the same employee. In that context, the inconsistency is based on the impression that the rule or standard is no longer applicable; is not regarded as serious by the employer; that disciplinary action will not necessarily be taken for non-compliance with the rule, or that the type of behaviour is condoned by the employer. If the rule is then suddenly enforced, resulting in dismissal, the inconsistent application of the rule by the employer will be a factor which must be considered in order to determine whether the dismissal was unfair.

However the LC went on to say that the mere failure to take disciplinary action against an employee who contravenes a rule for a period of time does not automatically mean that the employee is justified in believing that the rule is no longer applicable or is no longer regarded as serious by the employer. The employee has to illustrate that the failure by the employer to take action has resulted in a bona fide belief to that effect. In this case the Court held that the employee "took chances" by contravening it and "got away" with it for a while. This can never equate with a genuine bona fide belief that a policy is no longer applicable or not regarded as serious based on the inconsistent application of the policy by the employer.

The court held that the commissioner had not taken account of the fact that the employer testified that the trust relationship between the parties had broken down. He failed to appreciate that consistency is one element of a fair dismissal and not a rule unto itself. Consequently the commissioner's award was not one that a reasonable decision maker could have reached based on the evidence before him, and therefore was set aside and substituted with an order that the dismissal of the employees was substantively fair.

What this case teaches us is that it would be far better if an employer does act consistently in applying its rules. Where it for various reasons has not done so, it could reinforce its future application by advising employees that whilst this particular rule has not always been strictly applied in the past, it will be applied in future due to changed circumstances. But where this has not been clarified, the employee would still have to show that the failure to take action has resulted in a bona fide belief that a policy is no longer applicable or not regarded as serious.

Proving incompatibility

Incompatibility and its consequences, as a ground for dismissal, can hover between misconduct, incapacity and even operational requirements, depending on the facts of a case. But we know that the courts have confirmed that incompatibility is not a separate fourth ground for dismissal: it (or the conduct flowing from it) has to be fitted into the standard categories of either misconduct, incapacity or operational requirements, and generally incompatibility has been regarded as akin to incapacity.

The recent case of Edcon Limited v Padayachee and Others (J331/16) [2018] ZALCJHB 307 (20 September 2018) shows that proving incompatibility can be difficult.

Consider the facts of this case: The employee was employed as the Group Remuneration and Benefits Manager. During 2014 the employer received several complaints from various members of staff. The complaints were around work ethic and the employee's ability to collaboratively work within a team. These complaints were brought to the employee's attention but the employee did little to address the complaints and an action plan submitted by her addressed only one of several complaints. An attempt was made to arrive at a mutual termination of employment, but this failed. A formal investigation was conducted which resulted in a decision that the employee should be summoned to an incapacity hearing to deal with the alleged incompatibility. An incapacity enquiry was conducted, which resulted in the employee being dismissed for incompatibility.

Aggrieved by her dismissal, she referred a dispute of alleged unfair dismissal to the CCMA. In arbitration her dismissal was found to be unfair. The employer proceeded to the Labour Court to review the arbitrator's award. At the Labour Court the arbitration award was upheld. The LC found that the dismissal for incompatibility was unfair as the employer's evidence focused on poor performance and misconduct, and not on incompatibility. The Court also emphasised that internal grievance procedures should be used to resolve these type of matters, and commented that there may be instances where lethargic employees may label a results-driven manager as being incompatible.

For conduct to be regarded as incompatibility it must depart from a recognized, conventional, or established norm or pattern. There must also be a clear causal link between the disharmony and the conduct.

The lesson of this case is that where an employer seeks to dismiss an employee on grounds of incompatibility, this is not primarily an enquiry into poor performance or misconduct. In order to prove incompatibility, independent corroborative evidence in substantiation is required to show that an employee's intolerable conduct was primarily the cause of the disharmony.

ARTICLE: : Q & A - Dagga and the workplace

by Prof Alan Rycroft

In this article we consider the effect of the Constitutional Court's judgment in Minister of Justice and Constitutional Development and Others v Prince (CCT108/17) [2018] ZACC 30 (18 September 2018) on issues raised by dagga use in relation to the workplace. In this case the Court decriminalised the possession and cultivation of small amounts of cannabis by adults for personal private consumption.

We have used the Q & A format in an attempt to answer questions being considered by Worklaw subscribers as a result of this judgment.

We answer the following questions:

  • Does the judgment require a new policy for drugs in the workplace?
  • Why must employers hold to a 'no-drugs' policy?
  • Will an employer be negligent if it is not vigilant about drug use?
  • Could an employer be liable to outsiders?
  • Can an employer have a "zero tolerance" policy on dagga?
  • If private use of dagga is now legal, can an employee bring a small amount of dagga into the workplace for later use?
  • Does the judgment allow dagga use in a private place in the workplace?
  • How easy is it to test for dagga use?
  • What if the employee refuses to be tested?
  • What if an employee denies use of dagga but a test confirms use?
  • Can an employee have medicines in her/his possession at work?

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
October 2018
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