Woman fired from Barloworld for using dagga was not unfair discrimination, court rules

[Totemic]

Woman fired from Barloworld for using dagga was not unfair discrimination, court rules

The Labour Court has upheld the dismissal of an employee for repeatedly testing positive for cannabis.

The court ruled that the decriminalisation of cannabis has not given protection to those who breach a company’s policy.

The company had a "zero tolerance" policy and it was irrelevant whether the employee’s performance was impaired or not.

A long-serving employee who was fired after repeatedly testing positive for cannabis, in breach of the company’s rules, has failed in her bid to be reinstated.

Bernadette Enever, who had been employed in an office position at Barloworld Equipment since 2007, said she used cannabis oil for medicinal reasons and smoked it recreationally for "spiritual" reasons".

She wanted the labour court to declare her dismissal in April 2020 to be grounded in "unfair discrimination" and automatically an unfair dismissal.

But Johannesburg Labour Court Acting Judge Makosho Ntsoane has dismissed her application, saying the company treated all employees the same. If Enever needed to use cannabis for medicinal purposes, she should have presented evidence of that. Instead she had only made the claim as an "afterthought", after she had been caught out.

In a summary of evidence, the judge said Enever had an unblemished disciplinary record when she first tested positive in January 2020.

Enever told of how at one stage, due to various ailments, she was taking up to ten prescription drugs a day. Following the decriminalisation of cannabis for personal use by the Constitutional Court, she had weaned herself off the pills using cannabis oil. She also smoked rolled cannabis every evening to assist with insomnia and anxiety which had improved her "bodily health, outlook and spirituality".

The judge said the company had a zero tolerance policy towards alcohol and drugs and required employees to undergo regular tests.

When Enever had first tested positive, she was placed on seven-day "cleaning up" leave, a process which entailed that the test would be repeated weekly until she tested negative.

It was common cause, the judge said, that when she tested positive, she was not "stoned" or unable to perform her usual desk duties. She was also not in possession of cannabis.

Enever continued to fail the weekly tests for a month and she was charged with breaching the company’s Alcohol and Substance Abuse Policy.

Following a hearing, she was fired, the chairperson indicating that there was no point in giving her a final written warning because she had "unequivocally refused to give up consumption of the cannabis".

Enever, in her case before the Labour Court, claimed the policy was unfair and discriminatory.

Judge Ntsoane said the unchallenged evidence was that she was at all times aware of the policy. The company had led evidence that it had been applied consistently to all employees.

"Indeed, everyone is entitled to use cannabis in their own space and for recreational purposes. Similarly everyone is entitled to consume alcohol in their own private space and time. This however does not mean that if an employee who consumed alcohol the previous night happens to test positive, the (company) would have to take cognisance of the fact that such alcohol was consumed in the employee’s private space and time.

"It also does not matter that (Enever) was not impaired when she tested positive. She has to comply with the rules."

He said in light of the dangerous environment, the company was entitled to its zero tolerance policy and the Constitutional Court judgment did not offer any protection to employees against disciplinary action should they breach company policies.

He said Enever had argued that the company "should understand " that cannabis and alcohol were different in that alcohol could clear out of someone’s system quickly, while cannabis can stay for days or weeks.

But, he said, she had been treated the same way as other employees and if she were treated differently "it would be seen to be creating a precedent" and would place an unfair burden on the company.

On the issue of her medical condition, the judge said there had been no "persuasive evidence" of this, and prior to testing positive she had not volunteered this information to the company but only sought to raise this as a defence "after she was caught".

"Even if I were to accept the medicinal argument, which I don’t, then why would I accept the recreational drug consumption when either or both will in any event lead to positive tests?"

Regarding the sanction of dismissal, Judge Ntsoane said Enever had indicated that she would not stop using cannabis and the hearing chairperson had correctly found that a final written warning would serve no purpose.

He dismissed her claims of discrimination and automatically unfair dismissal, but made no order as to costs.

 

https://www.news24.com/fin24/companies/woman-fired-from-barloworld-for-using-dagga-was-not-unfair-discrimination-court-rules-20220628?dicbo=v2-59dea29d3c45c6f8221b1c30a1690ec8

[Bos]

Ironic how the law regarding cannabis consumption was written in this regard. You are allowed to use it in your private capacity but.... many/most companies have this zero tollerance policy, because cannabis is still regarded as a "physically addictive" and "fabric of society destroying" drug. 

But on the other hand she didn't do herself any favours as the judge stated. She should've approached the situation with more forethought.

My company has the same zero tolerance policy. Played my cards right with the safety officer, get a heads-up 2-6weeks b4 any testing...mandatory tolerance break. Workaround sorted. 

[Ill_Evan]

Company policies are what it is. The tide will change slowly as the older generation starts moving on, or even better this whole work from the office culture goes along with them and the problem sorts itself. Those company policies are probably 20 years old. 

Obviously if you are armed security, operating heavy machinery, or doing a job that clearly doesn't mix with weed, then ja, duh. 

[Bos]

20 hours ago, Ill_Evan said:

Company policies are what it is. The tide will change slowly as the older generation starts moving on, or even better this whole work from the office culture goes along with them and the problem sorts itself. Those company policies are probably 20 years old. 

Obviously if you are armed security, operating heavy machinery, or doing a job that clearly doesn't mix with weed, then ja, duh. 

I agree on those points, but if you consume at home you're not "high" the next morning at work, but you'll have thc in your system. In a perfect world testing methodology/tech should be improved to discern between levels such as with alcohol. But I'm not holding my breath....

[Naughty.Psychonaut]

did I miss something or WHY THEY NAMING THE EMPLOYEE AND NOT THE P*** THAT FIRED HER????  

The precedent was already set when the law was changed, who the hell does this guy think he is? oooooh jinne I should get into law........ this is the personal feelings of someone in office at Barloworld surfacing and this guy is a complete idiot and can thank his god for the unfair bias, there shouldn't have been a court case except for the one against the company taking measures beyond what the law dictates. Barloworld and who ever is behind this is directly infringing on what his employees are doing on their own time, the fact that it's "dagga" the employee was using has nothing to do with them as a company since the law to use "dagga" on personal time and private property recreationally was passed. clearly this Barloworld poeskop has some personal issues with "dagga".

smoking weed is legal, you cannot fire someone for having coffee at home. If you are breaking the law on your own time, that's a different story all together and the company can just get the law involved. not act out on their personal feelings and beliefs. 

the law is the law that's why we have it.

Zero tolerance policies can dictate you get fired on the spot when under the influence of substances, even if they are legal, on company time. not that you don't get drunk over the weekend, cause that would be infringement. Was she high on company time? No. So zero tolerance policy se p**s.

if it was illegal substance I would understand the probation period, but you can't put someone on probation for drinking coffee at home, you couldn't do it with alcohol or cigarettes, so why can you with weed? 

yeah, testing methods need to change.

as for the whole bullshit they spin about the employee only using this defense tactic after she got caught out, well was there any special forms or anything handed out by Barloworld asking employees to state all substances they use on their personal time? legal and illegal? I am pretty sure there isn't, cause that would be infringement too. 

the employee wasn't too bright saying it's for medicinal use when it wasn't. there was no need for that, and now they have something to hold against her. 

if it was medicinal or recreational use has nothing to do with the company anyway.

do they need to know if you drink coffee recreationally or medicinally? No. 

ALSO, does the company present a disclosure agreement upon hiring where people need to agree to not use dagga since working for them? I DON'T THINK SO, otherwise this whole thing wouldn't have happened. but because they chose to let their employees do what is legal on their own time, it's an unwritten and unspoken agreement that they can smoke weed at home. otherwise, to protect them as a company they needed to print legal documents to get personal information from their employees and newly hired staff, which would've been a hassle for them, because not even the fucking government can just come ask you personal shit you do on your private time and property. 

this is absolute BULLSHIT!!!!!! fuck Barloworld. they wana talk about setting a precedent and be a model for how things should be they need to get updated on the public opinion of dagga use and change their uneducated beliefs. fucking assholes potentially taking away someones livelihood from them and their dependants, an employee of 15 years, just cause of their lack of common sense...

only precedent they setting is that Barloworld is being run by a shit-for-brains asshole.

I hope there's justice for Bernadette Enever and I hope there is justice for the Barloworld cunt aswell. he deserves it more than her. 

[Ill_Evan]

1 hour ago, Naughty.Psychonaut said:

Zero tolerance policies can dictate you get fired on the spot when under the influence of substances, even if they are legal, on company time. not that you don't get drunk over the weekend, cause that would be infringement. Was she high on company time? No. So zero tolerance policy se p**s.

if it was illegal substance I would understand the probation period, but you can't put someone on probation for drinking coffee at home, you couldn't do it with alcohol or cigarettes, so why can you with weed? 

yeah, testing methods need to change.

Truth. When I got caught as a lighty by my mom and got my pee tested, I pissed hot for weed even a month after not smoking anything. I was treated like I had literally sparked up right before going into the bathroom. Good times! 

As much as I'd say we need new testing methodologies, I also feel like not. The less the SAPS have to terrorize me the better. 

[SkunkPharm]

Judgment JS633-20 and JS926-20 Leave to Appeal.pdf

[SkunkPharm]

Leave to appeal granted

[Naughty.Psychonaut]

that's quite positive, for now! let's see where this goes