Woman wins backpay after company's zero-tolerance policy on at-home cannabis use is ruled irrational

Barloworld Equipment has been ordered to pay two years' backdated salary to a woman dismissed for cannabis use after the Labour Appeal Court in Johannesburg found the company's blanket zero-tolerance policy irrational.

Bernadette Enever, who was earning R43,000 a month at the time of her sacking in 2020, was found to have been unfairly dismissed.

During her challenge of the dismissal at the Labour Court, she said she smoked a joint in the evenings and at weekends and used cannabis oils to help her with anxiety and migraines. She preferred to do this as pharmaceutical interventions for her health had left her with side-effects.

Her cannabis use did not impair her performance during office hours and she was never “stoned” at work.

Barloworld did not argue her work was affected. It stated it has a zero-tolerance alcohol and substance abuse policy across all its operations locally and internationally, which required employees to undergo medical tests to gain biometric access. If an employee tested positive for alcohol or a substance they are declared unfit for work until they can produce a clear test.

Enever tested positive in several urine tests as she continued her cannabis use. Consequently she was found guilty of breaching the policy at a disciplinary hearing and dismissed.

In 2022 the Labour Court found against her, saying as cannabis is an intoxicating substance employers may implement their own rules or policies to ensure occupational health and safety.

This week, however, the Labour Appeal Court found in her favour, saying she had been unfairly dismissed.

The policy was “overbroad”, the court found, and it rejected the assertion that a uniform companywide policy across multiple countries was applicable, reminding Barloworld its employees had rights under South Africa's Labour Relations Act.

The judges found the company's policy to be “irrational” and breached her constitutional rights to privacy in that it prohibited office-based employees who do not operate dangerous machinery from consuming cannabis in their private time.

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