Labour Court rules in favour of woman who was fired for smoking ‘a joint’ after work – orders Barloworld to back pay R1 million

A Gauteng woman who was fired for smoking cannabis after work for medical reasons took her fight to the Labour Appeal Court of South Africa and emerged victorious.

Bernadette Enever filed an appeal against Barloworld South Africa’s decision to dismiss her on April 20, 2020, for going against their zero-approach policy to drugs and alcohol.

In June 2022, the Johannesburg Labour Court ruled in favour of Barloworld, but this week the appeal court set aside their ruling in what could possibly be deemed as a ground-breaking judgment.

The Labour Appeal Court found that Barloworld’s policy was “overbroad” and infringed on Enever’s right to privacy.

It further ruled that Barloworld’s Alcohol and Substance Abuse Policy is irrational and violates the right to privacy in Section 14 of the Constitution, to the extent that it prohibits office-based employees that do not work with or within an environment that has heavy, dangerous and similar equipment, from consuming cannabis in the privacy of their home.

The court found that Enever’s suffered unfair discrimination and that her dismissal was automatically unfair.

They were ordered to pay her 24 months compensation of R43,199,75.00 per month, which amounts to more than R1 million.

Background

According to court documents, Enever worked as a category analyst at the time of her dismissal.

The background was that she had signed an Employee Policy handbook in 2012, in which it explicitly states that the company may require employees to undergo medical examinations.

In 2018, the company send out a document to staff titled ‘Cannabis is strictly prohibited in the workplace’ following the Constitutional Court’s decision to decriminalise the use of cannabis for adults in the privacy of their homes.

It stated it would have no bearing on their company policy.

In May 2012, Enever’s doctor had prescribed her medication for pain and sleep due to severe anxiety, but she said she suffered side-effects.

Following the decriminalisation judgment, Enever began using cannabis which she says eventually helped her reduce her reliance of prescription medication.

In essence, she said she saw an improved relief from cannabis-based products.

She said she smoked a rolled-up cannabis (joint) every night and on weekends, along with the daily use of cannabis-based products like cannabis oil.

Dismissal

On January 2020, four months before her dismissal, Enever, in order to regain biometric access to the workplace was required to undergo a medical test, which included a urine test.

The test results came back positive for cannabis use.

She was denied access and told to return to work after seven days.

A further four tests done in February came back positive because she did not stop the use of cannabis.

A notice of disciplinary was served on her on February 25, 2020 and she pleaded guilty at a disciplinary hearing on February 28, 2020.

In mitigation, Enever spoke about the benefits she has seen from using cannabis, more especially how she had less anxiety, better sleep and was no longer reliant on side effect-causing prescriptions.

However, her access to the workplace was denied and she was told to return when she tested negative.

Enever never tested negative and at the outcome of her hearing on April 30, 2020 was a dismissal.

It was accepted by her employer, according to the court documents, that during her time of testing she was not impaired in the performance of her duties or suspected of being intoxicated.

It further stated that Enever worked in an office without operating dangerous machinery nor was she required to drive for Barloworld.

Following her dismissal, Enever took her matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) but it did not take place due to the Covid-19 pandemic and therefore she approached the Labour Court.

Each party was ordered to pay their own costs.