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Is the Dismissal of an Employee for Cannabis Use Outside the Workplace Unfair Discrimination?

Cannabis business dismissal

In a recent judgment, a pressing issue was brought to the forefront regarding the intersection of workplace policies and the privacy rights of employees. The case revolved around an appellant who was dismissed from her employment for testing positive for cannabis during a routine medical check. This case highlights critical questions about privacy, medicinal cannabis use, and workplace safety.


Facts of the Case:

The appellant, who suffered from severe anxiety, switched from prescribed medication, which had adverse side effects, to cannabis after its decriminalization, as it offered her relief without the unwanted side effects. She consumed cannabis in the evenings and weekends, predominantly at home. Her employer, maintaining a zero-tolerance policy towards drug and alcohol use, dismissed her following a positive cannabis test, despite no evidence of impairment at work.


Legal Context:

The appellant’s use of cannabis was primarily off-duty, aligning with the constitutional court decision in Minister of Justice v Prince [2018] ZACC 30, which allows adult cannabis use in private. Despite this, the employer enforced a strict policy that did not differentiate the context of use — whether recreational, medicinal, or private.


Court’s Reasoning:

The Labour Court initially upheld the dismissal, emphasizing policy consistency regardless of the individual’s reasons for cannabis consumption. However, upon appeal, the decision was scrutinized under the lens of fairness, discrimination, and the right to privacy. The appellate court found that the employer’s policy was overly broad and infringed on the appellant’s right to privacy, as there was no evidence her use of cannabis negatively impacted her work or posed a safety risk.



The appellate court declared the employer’s policy irrational and a violation of privacy rights, particularly since the appellant’s use of cannabis was off-site and did not impair her during work hours. The court highlighted the discrimination against cannabis users, treating them differently from alcohol users, which constituted unfair discrimination. This was especially pertinent as the appellant’s role did not involve high-risk activities that could justify such a stringent policy.



The appeal was upheld, and the employer’s policy was ruled to undermine the right to privacy and constitute unfair discrimination. The appellant was awarded 24 months’ compensation for the unfair dismissal. This case sets a significant precedent about how employers must carefully balance workplace policies with respect for personal privacy and the rights of employees to engage in legal activities outside of work hours.


FAQs About the Case:

  1. What does this case say about using cannabis for medicinal purposes?
    • The court recognized the legitimacy of using cannabis for medicinal purposes, especially when it does not impair the employee’s ability to perform their duties.
  2. Can employers enforce zero-tolerance policies for drug use?
    • While employers can enforce policies to ensure safety and productivity at work, such policies must not unjustifiably infringe on employees’ privacy and must be reasonable and evidence-based.
  3. What should employees who use cannabis medicinally do to protect themselves from similar dismissals?
    • Employees should disclose their medicinal use to their employers and provide necessary medical documentation to support their case, ensuring clear communication about their non-impairment during work hours.
  4. Does this ruling mean that all employees who use cannabis will not face dismissal?
    • Not necessarily. Each case will depend on specific factors, including the nature of the employee’s job, the conditions under which they use cannabis, and the actual impact on their work performance and safety.

This case is a ruling that underscores the evolving legal landscape surrounding cannabis use and the importance of ensuring that workplace policies are aligned with constitutional rights and current laws.

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