Creating clarity: Possession and use of dagga in the workplace
In a recent ruling, the Constitutional Court found that the growing of dagga for private use is not a criminal offence; neither is the smoking of dagga in private. This ruling has given rise to much confusion among employers and employees alike. The purpose of this article is to inform franchisees and store managers about their rights.
The rumour mill is in overdrive
Following the judgement, and spurred on by sensationalist reporting in some media, two opposing opinions emerged:
- Workers believe that in light of the judgement, they are now free to smoke dagga at work. They don’t realise that this remains a criminal offence.
- Employers are concerned about the effect the smoking of dagga at the workplace would have on interpersonal relations, workplace discipline and productivity. They are unsure how to deal with this matter should the need arise.
What does the ruling really say?
Deputy Chief Justice Raymond Zondo’s ruling states that adult individuals are now permitted to use, possess and cultivate cannabis in private and for personal consumption only, not for sale. The ruling further indicates that the use (including smoking) of cannabis in public or in the presence of children or non-consenting adults is not permitted.
Labour law experts are unanimous in their interpretation of this ground-breaking ruling. They point out that the ruling permits the use of dagga in private only and stress that the workplace is not a private location. It follows that employers continue to have the unfettered right to ban the possession and / or use of dagga in the workplace but pitfalls do exist.
What is the legal position?
Relevant legislation does not yet exist. Deputy Chief Justice Raymond Zondo gave Parliament 24 months to formulate it. He also provides some guidance to law enforcement agencies on how to handle this in the interim.
Until promulgation of the new legislation, dagga remains a schedule 7 drug. In view of the judgement, having a small quantity of dagga on one’s person would not constitute a criminal offence but employers are well within their right to prohibit possession of dagga within the work environment outright.
Because the lawmakers have yet to decide what constitutes a small quantity, it is best to place an absolute prohibition on possession. And for reasons set out later, employers have undoubtedly the right to prohibit the smoking of dagga in the workplace.
Complications may arise when an employee appears to be under the influence of dagga but claims to have consumed it in private outside working hours. Because the active ingredient of dagga stays in the bloodstream for much longer than for example alcohol does, a blood test would come up positive yet the employee could claim that he has done nothing wrong.
The impending change in the law should not detract from the fact that dagga is a narcotic. Schedule 2 drugs carry a warning to the effect that their ingestion impairs the ability to operate dangerous machinery. Quite clearly, this restriction applies to an even greater extent to persons under the influence of a schedule 7 drug.
In course of their normal duties, employees of OBC stores handle sharp knives, slicing and sawing equipment. Some even drive a forklift or company vehicles. Although not every employee falls into this category, it would be impractical to differentiate among the various categories of employees within a relatively small team.
Being under the influence of a narcotic is almost certain to affect alertness, reasonableness and performance in general. It is also likely to impact on interpersonal relations between the impaired person, customers, management and other members of staff.
Seeing that employers are under a legal obligation to offer safe and pleasant working conditions, it is reasonable to conclude that they are not only within their right but have in fact a legal obligation to prohibit possession and use of narcotics at work.
Until absolute clarity exists on what is and is not acceptable when it comes to the possession and use of dagga at the workplace, we recommend a cautious approach. Franchisees should make it absolutely clear to their employees that:
- Having dagga on their person during working hours, regardless of quantity, is absolutely prohibited. Offenders will face disciplinary action which could result in their dismissal.
- Smoking dagga during working hours (including breaks) is absolutely prohibited. Offenders will face disciplinary action which could result in their dismissal.
- Arriving at work under the influence of dagga, regardless of underlying circumstances, will trigger an in-depth investigation. Should it emerge that the employee in question arrived at work at an impaired state as a result of consuming dagga, it will trigger disciplinary action which could result in dismissal.
In our view, implementation of these rules should be a two-step process:
- Speak to all employees in a group setting.
- Follow through by placing a notice at a location within the business premises where it is reasonable to assume that all employees see it.
Given the importance of the topic, we’ll also cover it in the operations manual. The treatment in the operations manual will be more detailed, but it won’t be available for a while.
* Important disclaimer
Although we believe the above information to be legally sound, neither the OBC Group (Pty) Ltd. as the publisher of this newsletter nor the writer of this article accept responsibility for outcomes. We recommend that franchisees seek competent legal advice before embarking on any action.