In September 2018 the Constitutional Court ruled that the private cultivation, possession and consumption of cannabis is legal. This ruling lead to great uncertainty from the South African public, especially regarding what is defined as ‘private’ and ‘personal’ use, which has now been answered by the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

In the recent CCMA case Mthembu and Others v NCT Durban Wood Chips [2019] 4 BALR 369 the arbitrator had to decide whether the dismissal of four employees who tested positive for cannabis at work was fair. The employer’s business involves the use of dangerous machinery and vehicles, and the transport of large logs. After the employer conducted drug tests on all its employees, urine samples confirmed that four of the employees had tested positive for the use of cannabis, and the employer subsequently charged them with being under the influence of intoxicating substances whilst on duty.

Although the employees admitted to having smoked cannabis in their spare time at home the arbitrator advised that this does not give employees license to attend at work under the influence of cannabis. The employees were aware of the employer’s zero-tolerance stance on substance abuse which was contained in its substance abuse policy and the possibility of dismissal if they tested positive.

In light of the abovementioned facts the arbitrator found that due to the dangerous nature of the employer’s workplace and the knowledge of the employer’s zero-tolerance policy on substance abuse, the dismissal was the appropriate sanction.

This case perfectly illustrates the need for legal development in relation to the private use of cannabis and highlights the fact that employers can still discipline and dismiss employees who report for duty under the influence of cannabis.


14 May 2019