Opinion / 4 December 2019, 10:20am / Michael Bagraim
We have touched on policies regarding the use of cannabis before and during work. It is important to stress that any employee who arrives at work under the influence of any intoxicating substances would be subject to the employer’s disciplinary code.
Furthermore, they would be subject to the Health and Safety Act and other labour policies referring to intoxication at work. Despite the fact that the cannabis usage might be legal under certain circumstances, this doesn’t make it correct at the workplace. Employers have a duty of care over employees. This duty extends to policies whereby an employer would ensure that an employee is kept safe under all circumstances. This stretches to the fact that an employer has to ensure that any one employee or more should not in any way endanger others. Guidelines in Schedule 8 to the Labour Relations Act say that any person determining whether dismissal for misconduct is unfair should consider the following:
Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace;
If the rule or standard was contravened the following questions are to be asked: (a) Whether the rule was valid or reasonable; (b) whether the employee was aware or could reasonably be expected to have been aware of the rule or standard; (c) whether the rule or standard was constantly applied by the employer; and (d) whether dismissal was an appropriate sanction for the contravention of the rule of standard.
It is therefore vital for each and every employee and their trade unions to have a careful look at all the rules and regulations pertaining to that employer. If there is a rule outlining any intoxication of any nature, then it would be obvious that an employee who arrives at work who is intoxicated by cannabis or any other drug would be subject to disciplinary action.
Furthermore, if the employee’s duties entail dangerous activities such as working on machinery or controlling vehicles or machinery then that employee could be a danger to both him or herself or other employees and the public.
Being under the influence of intoxicating substances while on duty invariably exposes that individual and others to danger.
Today, most employers have a zero-tolerance approach towards substance abuse. When each employee is inducted into work then the employee should be given copies of the policies which would be explained to them. Once the explanation has been understood the employee would be expected to sign off on the policy indicating they know and understand the policy.
This induction process is valuable should it ever become necessary to take disciplinary action against someone. The signing off and acknowledging of these policies would be extremely useful in obtaining a full and proper understanding and thereby avoiding the use of the intoxicating substances.
Many of our courts and arbitrators have said it is reasonable to have such a rule in place at the work place.
Alcohol has been legal for many years, but it certainly is wrong to be under the influence of alcohol at work.
The partaking of alcohol and cannabis prior to work does not absolve the individual from disciplinary action. Companies take their health and safety extremely seriously and when an individual is expected to use any equipment, it would be fair and reasonable to ensure that the individual will adhere to the rules that are in place.
Even if the employer has no exclusive rule outlawing intoxication at work it is taken as reasonable for all employees to understand that such intoxication is not acceptable.
It becomes a lot easier for the company to take disciplinary action if there is that fair and reasonable rule in place which can be relied upon at disciplinary enquiries at future arbitrations. The Department of Employment and Labour has inspectors who do from time to time investigate allegations of substance abuse and intoxication at work. If dangerous machinery is in use, the Department can close down the entire operation.
Often employees raise the issue that although they might have a certain amount of intoxication due to the intake of cannabis they are perfectly sound and in their right mind to continue working. The rules normally clearly state any intoxication is unacceptable and could lead to dismissal.
Furthermore, many companies have insurance in place stating that an insurance policy would become null and void if it can be shown that the company was aware that the user of the machinery was intoxicated. As soon as an employer discovers the employee’s propensity to partake in cannabis use then it might be incumbent upon the employer to stop that employee from using that machinery as they might not be covered by the insurance.
It is incumbent upon each employer to fully explain the reasons for the no tolerance rules against intoxication. Employers are well advised to renew the discussions with regard to cannabis as there does seem to be a mistaken believe now that cannabis is legal for use in the private household that it would be acceptable to arrive at work the next day even if slightly intoxicated.
The numerous arbitrations held subsequent to the easing of the cannabis laws have shown that dismissal for the intoxication has been fair and reasonable.
Many employers still use the breathalyser for alcohol before employees are allowed onto the employer’s premises. We can still expect tests to be held checking the intoxication levels for cannabis. At present these tests are cumbersome but scientists are working on easy and better ways to test cannabis intoxication.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.