Enever v Barloworld Equipment

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ntsoane AJ
• Judgment Date: 01 June 2022
• Citation: 2023 JDR 2438 (LC)
• Hearing Date: 23 March 2022
• Docket Number: JS 633/20
• Court: Labour Court

Ntsoane AJ:

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Ntsoane AJ

Introduction

[1]

The Applicant has referred two claims to this Court by way of stated cases: one claiming unfair discrimination [1] in terms of section 6(1) of the Employment Equity Act [2] (EEA) and another one claiming automatically unfair dismissal [3] in terms of section 187(1)(f) of the Labour Relations Act [4] (LRA). The two claims have been consolidated.

[2]

The Applicant was dismissed on account of repetitively testing positive for the cannabis drug and accordingly in breach of the Respondent’s Alcohol and Substance Abuse Policy. The Applicant’s claim is that her dismissal was automatically unfair and also that the Respondent’s policy discriminated against her on arbitrary grounds and seeks to be retrospectively reinstated in the event that this Court finds in her favour.

Background of the claims

[3]

I hereby summarise the respective parties’ evidence as presented during the trial. The Applicant was employed by the Respondent from 11 April 2007 until she was dismissed on 30 April 2020. At the time of her employment with the Respondent, the Applicant occupied a position of Category Analyst which was a typical office or desk position. The Applicant’s position did not constitute a safety sensitive job in that she was neither required to operate heavy machinery nor drive any of the Respondent’s vehicles.

[4]

The Applicant had an unblemished disciplinary record.

[5]

The Applicant testified that some time ago she suffered severe constant migraine and anxiety which affected her general well-being as well as tempering with her smooth sleeping. As a result thereof, she was prescribed

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medication by her general practitioner for pain and anxiety which proved to have some side effects on her. During or about May 2012, the Applicant was prescribed pharmaceutical drugs which required daily consumption of about 10 pills (including sleeping tablets) to ease pain and assist in falling asleep. Following the Constitutional Court case [5] which decriminalised the use of cannabis, especially in private spaces, and during or about October 2018 the Applicant gradually moved away from consuming pharmaceutical pills to using cannabis oil and smoking rolled cannabis as an alternative to achieve the same results. It took the Applicant a period of about three months to reduce her daily consumption of pills to four until she completely weaned off the pills so she can continue with the use of cannabis. The transition period took her between six to twelve months.

[6]

The Applicant also used cannabis recreationally by smoking rolled cannabis every evening to assist with insomnia and anxiety. This also improved her bodily health, outlook and her spirituality had improved as a result thereof. She testified that smoking cannabis makes her feel closer to God which also assists in her quest to addressing internal struggles. It should be stated that these averments by the Applicant [6] , remained unchallenged during the trial of the case.

[7]

The Respondent has an Alcohol and Substance Policy which the Applicant was, at all material times, aware of its provisions. In terms of the Respondent’s reviewed or amended Alcohol and Substance Policy and in order to gain biometric access to the Respondent’s premises, the employees are required to undergo medical tests. On 29 January 2020, the Applicant was subjected to a medical test which was in a form of a urine test. The test came back positive for cannabis drug detected in the Applicant’s system and as a result thereof, on the same day, the Applicant was informed that she was unfit to continue working and directed to immediately leave the premises of the Respondent. The Applicant was immediately placed on a 7-day “cleaning up

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process” which entailed that the test would be repeated on a weekly basis until the Applicant was cleared by testing negative. The Applicant’s accumulated annual leave would be utilised in lieu of the time off while on the “cleaning-up process” and in the event that the annual leave is depleted then she would be placed on forced unpaid leave.

[8]

It forms part of the common cause issues that, at the time of undergoing the urine test, the Applicant was not impaired or suspected of being impaired in the performance of her duties nor was she performing any duties for which the use of cannabis would be said to be a risk to her own safety or that of her fellow employees. The Applicant was also not in possession or suspected of being in possession of the cannabis whilst at work on the Respondent’s premises.

[9]

During the period from 29 January 2020 and 28 February 2020, the Applicant was denied access to the Respondent’s premises as her further tests continued to detect the cannabis drug in her system. This was so because the Applicant continued to consume the cannabis for both medical and recreational reasons. The Applicant was accordingly charged with breach of the Respondent’s Alcohol and Substance Abuse Policy and on 25 February 2020, a notice to attend a formal disciplinary hearing was issued to her. The disciplinary hearing duly sat where the Applicant pleaded guilty to the charge on the basis that she has indeed tested positive for cannabis. During mitigation, the Applicant indicated that she did not plead guilty to being intoxicated or impaired at work. She also indicated that she was never “stoned” at work and reiterated the importance of smoking rolled-up cannabis every evening as well as daily use of CBD oil to relax and maintain her improved medical benefits which reduced her pharmaceutical drug dependency.

[10]

Notwithstanding all these, the Respondent instructed the Applicant to undergo a “cleaning-up process” and that she would continue to be tested every seven days until she tests negative which process was in line with the Alcohol and Substance Abuse Policy. The Applicant engaged the services of a law firm so

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as to engage the Respondent about its unfair, discriminatory and fundamentally flawed Alcohol and Substance Policy. Following this and on 25 April 2020, the Respondent sent a meeting request to the Applicant in order to convey the outcome of the disciplinary hearing. The meeting held on 29 April 2020 on a virtual platform was convened where the summary dismissal was imposed against the Applicant.

[11]

Despite the initiator of the hearing requesting a final written warning against the Applicant, the chairperson however imposed a dismissal sanction as the chairperson was of a view that a final written warning would not serve any purpose due to the fact that the Applicant had unequivocally refused to give up consumption of the cannabis.

Argument

[12]

The respective parties submitted their detailed written heads of argument to which the Court is grateful and duly considered. In addition, the parties requested an opportunity to argue their submissions in an oral platform. It is unnecessary for the purposes of this judgment to repeat all those submissions.

Section 6(1) of the EEA

[13]

The Applicant submitted that she was unfairly discriminated by the Respondent on arbitrary grounds. The applicant pins her case on two legs, firstly, on section 6 of the EEA and secondly, on section 187 (1) (f) of the LRA. Section 6(1) of the EEA deals with the prohibition of unfair discrimination. According to this section, no person may discriminate directly or indirectly against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth or on any other arbitrary grounds. In this regard, the issue of the Applicant falls within the ambit of the arbitrary grounds.

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[14]

The EEA then continues to provide in section 11 that if unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must provide, on a balance of probabilities that such discrimination (a) did not take place as alleged; or (b) is rational and not unfair or is otherwise justifiable. In my understanding of section 11, once the Applicant has managed to allege the unfair discrimination then the onus shifts to the Respondent to prove and show that such discrimination in fact did not take place alternatively, it was not an “unfair” discrimination. This means the two parties, employee and employer, have pertinent roles to play to the assistance of the Court. Whilst not all forms of discriminations are unfair, to my understanding section 11 still requires an applicant to produce some facts in order to prove that unfair discrimination has taken place. The Applicant is not absolved from presenting and proving its case if and when unfair discrimination is alleged. Similarly, because the Applicant is alleging automatic unfair dismissal as a result of the discrimination, which the two I conclude are inter-dependent, then the Applicant has the responsibility to also present credible evidence to support her automatic unfair dismissal claim [7] . This means that if the Applicant is able to overcome the hurdle of unfair discrimination then the automatic unfair dismissal case will be afforded a hearing.

Evaluation of the evidence

[15]

In order to determine and ultimately answer the questions of law raised by the Applicant whether there was an unfair discrimination committed against her in this regard and also automatically unfair dismissal, there are quite a few issues that need to be afforded some attention in order to place my determination into perspective. It is common cause that the Respondent has safety rules in place to protect the employees and the Respondent from liability. One of the safety rules in place...