SOUTH AFRICA: ANOTHER BLOW TO THE ‘CANNABIS COMMUNITY’ – LABOUR COURT RULES THAT EMPLOYER’S SUBSTANCE ABUSE POLICY DOES NOT UNFAIRLY DISCRIMINATE BASED ON ‘CANNABIS CULTURE’

On 27 June 2023, in the matter of Marasi v Petroleum Oil and Gas Corporation of South Africa, the Labour Court found that PetroSA had not unfairly discriminated against an employee based on his ‘cannabis culture’ when it declared him unfit for duty and refused him access to the refinery as a result of his cannabis levels exceeding the permissible cut-off levels in terms of its substance abuse policy.

Background

PetroSA's primary business is the exploration and production of oil and gas. Its Mossel Bay facility operates one of the largest gas-to-liquid refineries in the world. As part of the company’s safety measures, all employees are breathalysed daily before entering the refinery and are subjected to an annual medical assessment, ad hoc inspections to ensure their fitness for duty and that no intoxicating substances are brought into the refinery, as well as random drug testing. Its substance abuse policy (Policy) provides for cut-off levels relating to the use of intoxicating substances, including alcohol and 16 other substances, and different types of medically approved testing.

Mr Marasi is employed by PetroSA as a telecommunications technician. In 2019, he informed PetroSA of his intention to pursue his calling as a traditional healer, which would involve the use of cannabis.

In order for him to attend his training school located in Mossel Bay, the company allowed him to transfer from the Cape Town branch to the Mossel Bay refinery. He was subsequently tested for cannabis and the results indicated that he was above the permissible cut-off levels in terms of the Policy. This meant that Mr Marasi was deemed unfit for duty and barred from accessing the refinery.

He was informed that he would be permitted to return to work when he tested either negative or below the cut-off limit. Mr Marasi utilised his annual and sick leave for the period he was off work and returned once he tested below the cut-off limit. Mr Marasi claimed that this amounted to an unfair suspension. He also raised an internal grievance in which he claimed that the Policy was outdated in light of the Constitutional Court judgment in Minister of Justice and Constitutional Development and others v Prince and others 2018 (6) SA 393 (CC) (Prince III).

His grievance remained unresolved, and ultimately, an unfair discrimination dispute was referred to the Labour Court.  In his referral, Mr Marasi claimed, inter alia, that PetroSA had unfairly discriminated against him on the basis of his religion and/or cannabis culture.  

The employee’s arguments 

Mr Marasi’s arguments at the Labour Court were as follows:

• The Policy itself is discriminatory – had it not been for his culture, he would not have been suspended.
• The reason for his alleged suspension was the Policy, which unfairly discriminated against him. Although the Policy is neutral on the face of it, its impact is disproportionate on the members of the ‘cannabis community’.
• The Policy is skewed towards mainstream drugs, i.e. alcohol and tobacco and unlawfully burdens or criminalises cannabis users for conducting the same normative activity.
• His testing above the limit in the Policy does not affect his ability to perform his work.
• He should have been reasonably accommodated to allow him to continue using cannabis in line with his culture. 

Findings of the Labour Court

The Court found that, on its face, the Policy does not differentiate between employees. However, it was prepared to accept that the Policy may arguably have impacted disproportionately on the constitutionally protected rights of users of cannabis who imbibe the substance for cultural or religious purposes. The issue was whether this impact amounted to unfair discrimination.

In terms of section 6 of the Employment Equity Act, 1998 no person may unfairly discriminate against an employee in any employment policy or practice on one or more listed grounds, including religion or culture, or on any other arbitrary ground. It is, however, not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

In the Court’s view, the critical issue in this case was whether testing below the limits contained in the Policy was an inherent requirement of the job. The Court found that it was. On this basis, any claim for unfair discrimination must fail. In reaching its conclusion that testing below the cut-off limits was an inherent requirement of the job of all PetroSA employees, the Court considered the nature of PetroSA’s working environment and the requirements of the relevant health and safety legislation appliable to the sector.

The Court further found that barring Mr Marasi access to the plant when under the influence of intoxicating substances did not constitute a ‘suspension’ in terms of the Labour Relations Act, 1995 or an unfair labour practice. In this regard the court held that ‘The concept that an employee should not be immediately barred from entry into a petrochemical plant when an impermissible amount of an intoxicating substance is found in their system, is absurd in the Court’s view.’ Further, the employee had applied for sick and annual leave for the period he was unable to enter the workplace.

The Court did accept that Mr Marasi felt deeply about the issue and was genuinely aggrieved by the Policy; however, the existence of discrimination does not depend on a person or group’s subjective feelings. Considering the employee’s deeply held views, however, the Court declined to make a costs order.

Key take-aways

Since the Constitutional Court decision in Prince III that decriminalised the private use or possession of cannabis by an adult, many employers have faced push-back from employees in relation to their substance abuse policies. This judgment, however, in line with previous decisions by our Labour Court, confirms the legal principle that such policies may still prohibit or limit the consumption of cannabis by employees in an employer’s efforts to ensure a safe working environment. This case also confirms that such policies will not amount to unfair discrimination where the employer can show that compliance with the policy is an inherent requirement of the job.