Mthembu and others / NCT Durban Wood Chips [2019] 4 BALR 369 CCMA

Principle:

  1. Whilst the Constitutional Court had declared private use of cannabis legal, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours.

  2. The test for wilful disregard of safety rules is an objective 'reasonable man' test - what would a person possessing the skills and experience of the applicants be expected to do, knowing the company's stance on substance abuse.

Facts:

The three applicants were among several employees who were dismissed after testing positive for cannabis during a test conducted during working hours. The applicants claimed that they had not smoked the drug during working hours. The employer claimed that due to the highly dangerous operations in its factory, it had a zero tolerance approach to working under the influence of alcohol or drugs, of which the applicants were aware.

The commissioner noted that the Constitutional Court had just declared private use of cannabis legal. However, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours. The employer's operations indicated that such a prohibition was reasonable and the applicants knew that they were not allowed to report for work while under the influence of cannabis.

The commissioner noted the dangerous nature of the employees' work and based his finding on this principle: The test for wilful disregard of safety rules is an objective 'reasonable man' test - what would a person possessing the skills and experience of the employees be expected to do, knowing the company's stance on substance abuse. The commissioner found that the employees' dismissal was therefore fair.

[Note: We have concerns about this award. It correctly states that although the Constitutional Court has declared private use of cannabis legal, employers are still entitled to discipline employees who use cannabis or are under its influence during working hours. But the commissioner in our view conflated testing positive for cannabis through a urine test with 'being under its influence'. The commissioner did not probe whether testing positive is the same as being 'under the influence'.]

Extract from the judgment:

C Oakes, Commissioner

[65]   It is common cause that the respondent has in place a substance abuse policy which states that the respondent adopts a "zero tolerance" approach towards substance abuse.

[66]   The substance abuse policy also states that the possession, sale or use of illegal drugs is not consistent with the companies needs to operate in a safe and efficient fashion, therefore, no employee of the company may use or possess unlawful drugs at any time.

[67]   It is common cause that the applicants signed acknowledging the substance abuse policy and that it was explained to them. All the applicants' testified that they are aware that the substance abuse policy states that they may not use drugs at the workplace. They are also told this at the tool box talks.

[68]   They all provided a common explanation and that is that they smoke Cannabis in their private time.

[69]   Is it reasonable to have a rule in place at the workplace in this regard? The Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development and others; Rubin v National Director of Public Prosecutions and others; Acton and others v National Director of Public Prosecutions and others (4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March 2017) [reported as Prince v Minister of Justice and Constitutional Development and others and related matters - Ed] has just this week pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution. The court found that the provisions are only unconstitutional to the extent that they trench upon the private use and consumption of a quantity of cannabis for personal purposes, which the legislative considers does not constitute undue harm.

[70]   This is consistent with the legality around other intoxicating substances such as alcohol. It is the danger around the intoxication which now becomes an element for consideration. The court wisely recognising this, limited its finding to use of Cannabis for private use.

[71]   Like alcohol where there is an inkling that such intoxication could impair one's ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence.

[72]   Because of the high degree of safety required of companies with heavy machinery and generally dangerous equipment, it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances. It is not disputed that it is an intoxicating substance and the court seems to accept this among other considerations and therefore limits its use to private use.

[73]   The rationale behind the rule of the company is consistent with the high degree of danger posed at the workplace. Mr Lenny Naidoo testified that they receive 60-85 truck deliveries daily. These carry logs which he testified can weigh between 30-100 kilograms. He further testified that the respondent has machinery moving around and a clipper which he described that spins and would be difficult to stop in the case of an emergency because it takes between 10-15 minutes to stop.

[74]   In turn he testified that each applicant's work posed specific dangers for each applicant.

[75]   Although each applicant tried to downplay the dangers inherent in each of their jobs, the evidence bares this out.

[76]   Mr Sifiso Mthembu was employed as a wage clerk where he receives trucks. He walks around the truck and inspects the vehicle and tests the timber. He weighs the truck in and authorises the truck to move to the next authorising point. He then walks to the other end of the plant to the exit of the weighbridge and weighs the truck before it leaves and walks back to the weighbridge. When he does this, he walks through traffic which provides danger to him. All around him are dangers and it is not as he states. He could easily be run over by a truck or have an incident when walking through the workplace. If not alert he could get injured when directing a truck or through a collision with moving machinery when walking through the plant. He (Mthembu) testified that he walks alongside locomotives in his duty. This poses another danger. The danger surrounding him requires an alert mind.

[77]   Mr Peterson sharpens knives which are a metre long. He sharpens three knives at a time. After sharpening the knives, he polishes them. His work without a doubt is very dangerous. It is common cause that there was an incident where a boiler maker walked past Mr Peterson's workstation and slit his finger to the bone as he walked past. His work is probably the most dangerous, yet he presented himself under the influence of an intoxicating substance.

[78]   Sanele Mthethwa is a log Deck Assistant. His job is at the point where the logs fall onto the deck. He must assist the logs when they get stuck. He sometimes must climb onto the log to pull it out if it gets stuck. It is self-evident that he must be alert. The inherent danger in climbing among logs to assist a jammed log is very real. He also assists moving logs off the conveyor belt.

[79]   Like Mr Peterson he could suffer serious injuries if not alert.

[80]   The test for a breach of safety standards is the wilful disregard for such rules. In the present matter the applicants were over time schooled in the substance abuse policy. In addition, they were told of the company's policy at tool box talks. I must pause to state that given this knowledge it was incumbent upon the applicants to inform the employer of any dependency issues they had. They did not.

[81]   The company's decision to dismiss in the present matter is closely aligned to safety considerations associated with someone working in a dangerous environment whilst under the influence of intoxicating substances. For this reason, it must be examined insofar as it impacts as a breach of safety regulations. It has not been approached primarily on the basis that it was a criminal offence.

[82]   The test for wilful disregard of safety rules is an objective reasonable man test. In other words what would a person possessing the skills and experience of the applicants be expected to do in the face of all the knowledge they possessed in respect of the company's stance on substance abuse. Given the factual matrix of the present matter it would be reasonable to expect the applicants not to present themselves to work under the influence of Cannabis because of the inherent dangers present at the workplace.

[83]   The applicants complained that the respondent has been inconsistent in disciplining two employees, that is, Ayanda and Thulani for similar offences. The respondent explained that although these two employees tested positive at the initial stage of testing, their laboratory results returned negative. Proof thereof was shown in the form of the test results of the two employees. Consistency in itself is not a rule. If an employer can distinguish between discipline handed down to different employees, the challenge to consistency falls away. This is the case in the present matter. They (Ayanda and Thulani) tested negative when laboratory tests were done whilst in the case of the applicants they tested positive for Cannabis at the same stage.

[84]   Regarding an appropriate sanction, the applicants were all aware that the respondent has a zero-tolerance view towards substance abuse and were aware of the possibility of dismissal if they tested positive. The company gave the applicants ample opportunity to adjust their private use of Cannabis in accordance with their work requirements. It was for them to make sure that when they smoke for private use it must not result in them reporting for work under the influence thereof. This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines.

[85]   It is not unusual for the Department of Labour to close a company for the occupational and safety risks it deems existent at company's premises. This has happened in recent times where mines were closed until such time that they put in place mechanisms averting the risk.

[86]   The applicants showed no real remorse. Their request for leniency was based on the actual offence but not on an undertaking that they would in the future make sure that they do not report for work under the influence of Cannabis. It was a hollow apology with no commitment to not repeating theoffence. Remorse is a sincere acknowledgement of wrong and that the offence will not be repeated. There was no undertaking on the part of the applicants in this regard. Whilst the respondent is unable to limit what they do privately, employees are expected to abide by safety standards of the respondent which are designed to protect life and limb of not only the employee concerned but those who have come to carry out their duties understanding that their workplace is safe from any dangers.

[87]   Given their extensive exposure to the company's policy prohibiting the use of intoxicating substances at the workplace and their reluctance to stop smoking Cannabis at the door of the workplace, I see no chance how any counselling or training would assist them.

[88]   I, accordingly, find the dismissals of the applicants to be fair.I, accordingly, find as follows.

Award

[89]   The dismissals of the applicants are found to be substantively fair.