Abstract
The study entitled: “Implications of the use of cannabis in the South African workplace”, is a comparative study, situated within the labour law fraternity. This area of law regulates the “employer-employee relationship” which often comes into conflict. The author casts light on the conflicting interests of the employer to ensure safety in the workplace, against the employee’s right to privacy. On the one hand, employers’ have an overarching duty to enhance workplace safety by putting in place of drug testing policies. On the other spectrum, employees may challenge drug testing policies on the ground of the right to privacy. This conflict arose after the Constitutional Court legalised “private use” of cannabis in Prince. The concern is, inter alia, that urine drug test detects cannabislong after it has been consumed. It only discloses presence of drug metabolites and not the likelihood of impairment at the time of the test. Therefore, employees may be dismissed even though their actions took place in private and could in no way affect their ability to perform duties safely. In light that Prince legalised the private use of cannabis, the study questions whether dismissal is an appropriate sanction following a positive drug screening, where an employee had used cannabis privately at home. It is not clear how our courts should construe the LRA by weighing the conflicting interests of the employer (to ensure safety) and employees (privacy) to reach the balance required by “fair labour practices”. The case of Mthembu is subject to constitutional scrutiny for upsetting a “fair” balance, as the CCMA upheld dismissal as an appropriate sanction following a positive drug screening. Mthembu is a totally misleading judgment for ignoring that urinalysis has the disadvantage of showing past impairment. This policy is declared unjust by foreign courts. A comparative legal analysis is utilised to examine how the US, Canada and German courts assess reasonableness to ascertain which drug testing policies may be declared reasonable, and those which constitutes a prima facie unlawful invasion of privacy. Foreign courts argue that the limitation (testing policy) must rationally be capable of achieving its purpose (ensuring safety). Therefore, a testing method which detects current impairment is capable of achieving safety, as opposed to that which shows past impairment. The study argues that South African courts may seek guidance from foreign case law to positively influence our legal system, to maintain equilibrium between the conflicting interests of employer(s) and employee(s). This promotes the achievement of social justice in the workplace and a shift towards a transformative society.
LL.M. (Labour Law)