Weed in the Workplace: A Labour Attorney’s Perspective
The legalisation of marijuana in South Africa has many people scratching their heads as to what exactly it means for employees in the workplace. Whilst some feel that the legalisation thereof is a good thing, some feel that it will not be good for the economy and the work force.
The “new” ruling poses some serious threats to the employer and the labour governance of our country. New questions are arising- what if my employee comes to work under the influence of marijuana? What if my employee injures a person because he is under the influence of marijuana? These are just a few questions that are being raised after the ruling of the Constitutional Court.
The answer to these questions are in my opinion, just an opinion. Why do I say this? We have laws in South-Africa, but during the course of the years these rules and laws have been tried and tested by the South-African Courts. The Courts interpret the laws and set a precedent on how these laws should be understood and/or dealt with.
Succinctly the South African courts work on precedents of previous cases in order to determine the way forward.
Marijuana has never been introduced as legal in our country and therefore our Courts are going to have to determine and interpret the way forward on how employers can or cannot deal with marijuana in the workplace.
It is my opinion that if marijuana may be used in private, this completely excludes the workplace and therefore an employee cannot attend work whilst being under the influence. If your working hours are from 08h00 – 17h00 in the week, during this time you are considered a representative of your company and you are to adhere to the company policies and procedures. The best way to deal with it, is to look at it from the same perspective as alcohol intoxication. It is not legal for any employee to attend work whilst under the influence of alcohol although alcohol use is legal in our country.
Therefore if an employee attends work whilst being under the influence of alcohol they will in all probabilities receive a disciplinary hearing and face a dismissal.
It is my opinion that each employer with a code of conduct, policies and procedures in place, should amend these as a matter of urgency in order to ensure that they comply with what is legally required from them in terms of the Labour Law.
This is going to be a big exercise for each employer, but to ensure that the employees do not go to the CCMA for an unfair dismissal dispute, it is of grave importance that the employers act immediately to ensure their companies interests.
It is my opinion that the CCMA and Labour Court will be dealing with various disputes regarding marijuana allegations and/or alleged unfair dismissals in the coming years. At least this will set the precedent for employers to ensure that they abide with the labour law requirements.