Can I be fired for smoking weed at home?

The long answer

The Constitutional Court found in September 2018  that the personal use or cultivation of dagga in private space is not a criminal offence and that not allowing a person to smoke cannabis in private was against the protection of privacy that is laid down in Section 14 of the Constitution.

The Concourt judgment said, additionally, “That means that, after the handing down of this judgment, there will be no law governing possession of cannabis by an adult in private for his or her own personal consumption in private that makes such possession a criminal offence. If that conduct will no longer be a criminal offence, there can be no basis for a peace officer to reasonably suspect an adult in that situation to be committing or to have committed an offence by being in possession of cannabis.”

So far so good, but it’s more complicated when it comes to the right of employers to test their employees and to dismiss them if they test positive.

Barney Jordaan and Jan Truter in an article on dagga in the workplace for Labour Guide say that nothing prevents an employer from implementing rules that regulate the possession and use of dagga at the workplace, including a total prohibition on its use and possession. “In fact, the General Safety Regulation 2A of the Occupational Health and Safety Act commands employers not to allow any person who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Cannabis is an intoxicating substance.”

The fact that the environment in which an employee works is not “dangerous” makes no difference.

They point out that the active ingredient in cannabis (tetrahydrocannabinol or THC) stays in the blood far longer than alcohol, and if someone smoked cannabis on Friday evening, it would show up if they were tested on Monday morning. The testing must be voluntary and confidential. However, the employer may introduce a condition of employment that makes it obligatory to undergo regular medical testing if employment conditions justify this.

In other words, if testing for alcohol or drugs is conducted following company policy, an employee has no grounds to refuse testing or argue the fairness thereof.

In the Labour Court case they describe, Bernadette Enever v Barlowworld Equipment, the court found that it was not an unfair dismissal of Bernadette Enever for testing positive for cannabis. The court said that it was not necessary to prove that she was under the influence of cannabis and that therefore her judgment and performance were negatively affected because it could be automatically assumed that a person was under the influence of dagga, because it is intoxicating. 

The Labour Guide authors did not agree with this and felt that it should be necessary for an employer to prove that an employee was under the influence of an intoxicating substance. But even without such proof, they say that the employer can still charge an employee for the presence of an intoxicating substance in her or his system. If the employee is found positive again, or if the employee does dangerous work, they could be dismissed.

Jan Truter, (co-author of the article above), says that “a ‘zero tolerance’ approach is fine for possession of dagga in the workplace or being under the influence while at work. One would have to be more circumspect when it comes to merely detecting cannabis in an employee’s system.”

The CCMA said that the Concourt judgment did not protect employees from disciplinary action if they did not follow company policies or disciplinary codes. So, if the employer has adopted a policy prohibiting the use of drugs in the workplace and the employees have been made aware of the policy, employees may be dismissed for testing positive for cannabis while in the workplace.

There will have to be another case in future that takes up the problem of being granted the constitutional right to smoke cannabis in your private space, but being dismissed by your employer for the presence of that cannabis lingering in your blood. The kind of work done should also justify the “zero tolerance” policy. As Jan Truter says, there should be more investigation than just finding cannabis in an employee’s system.

But until such a case is successfully made in court, it seems that your brother can be dismissed for testing positive for cannabis, particularly now that he has been warned, although he may not be at all impaired the next day at work because of the cannabis he smoked the night before.

Wishing you the best,
Athalie