BY Teboho Mokoena

As promised in the previous column, we continue to examine issues raised in the Bernadette Enever (Applicant) v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (Respondent), case number JS 633/20 and JS926/20.
The applicant, having been dismissed on account of testing positive for the cannabis, and in breach of the respondent’s Alcohol and Substance Abuse Policy, escalated the matter to the Labour Court.
The applicant’s claim was that her dismissal was automatically unfair. The applicant further averred that the respondent’s policy discriminated against her on arbitrary grounds and sought to be retrospectively reinstated in her previous role.
The applicant based her claims of unfair discrimination and automatic unfair dismissal on sections 6(1) and 187 (1) of the Employment Equity Act (EEA) and Labour Relations Act (LRA), respectively.
Section 6(1) of the EEA provides that:
“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including 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, or birth or on any other arbitrary grounds.”
Section 11 of the EEA deals with the burden of proof in unfair discrimination matters. It provides that:
(1) If unfair discrimination is alleged on the ground listed in Section 6(1), the employer against whom the allegation is made must prove, on a balance of probability, that such discrimination –
(a) did not take place as alleged or
(b) is rational and not unfair, or is otherwise justifiable.
Was the Respondent’s policy rational of justified?
(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that –
(a) the conduct complained of is not rational.
(b) the conduct complained of amounts to discrimination and
(c) the discrimination is unfair.

The court’s approach in handling this matter was to distil this case into a set of key questions:

1. Was there differentiation between the Applicant and other employees?
2. Could it be said that there was causal link between testing positive for cannabis and the dismissal?
3. Whether the Respondent’s alcohol and substance abuse policy is unfair and discriminatory?
4. Was the applicant subjected to insulting, degrading, humiliating treatment which impaired her dignity as a result of the unfair and unconstitutional discrimination?

In this case, the respondent was able to prove that their Alcohol and Substance Abuse policy had been consistently applied to all their employees. In other words, there was no distinction between how the applicant was treated, relative to other employees. In so far as the second question is concerned, we once again have to take into cognisance the fact that it was not in dispute that there was a clear and unambiguous policy in place which had to be adhered to by all employees.
Contravention of this policy was not permissible. As highlighted in the previous column, the applicant had placed on record that due to her personal circumstances, she did not envisage a situation where she was going to refrain from using cannabis.
Clearly, this meant the applicant would always be in breach of this policy. To compound matters further, let us recall that the Respondent’s application of the policy meant that all those who tested positive were allocated time off to “clean-up”.
In essence, this meant the applicant, a committed user of cannabis, would never be in a state where she had “cleaned-up” to a point where she could be allowed to return to work.
The court was therefore faced with an untenable scenario, where finding in favour of the applicant implied that the respondent would have had to cope with an employee who would permanently be absent from work.
Viewed from any angle, this would have been an unimaginably onerous cross to bear on the part of the respondent. The court also had to determine whether the sanction of dismissal was fair or not. In this regard, it will be recalled that whereas the Disciplinary Officer had made a case for a lesser sanction, the chairperson of the hearing felt that any sanction other than a dismissal would not serve any purpose; this in light of the fact that the applicant had made it known that she would not cease using cannabis.
In the case of Gcwensha v Commission for Conciliation, Mediation and Others (2006) 27 ILJ 927 (LAC), Nicholson AJ stated the following:
“Even in the absence of a valid final written warning an employer is entitled to dismiss an employee in appropriate circumstances. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct.
“To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings.
“An employee’s duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances.”
On the third question, the court held that once it had been established and accepted that the respondent had a policy which, not only established clear rules, but was consistently applied across the board, the issue of discrimination fell away.
It will also be recalled that the applicant sought to argue that the policy was unfair in that it did not take into account her unique medical condition.
It must also be recalled that the applicant not only failed to get a medical practitioner to sanction her use of cannabis, but also did not take the initiative of informing or alerting the respondent that her medical condition warranted the use of cannabis.
It was only after she had tested positive that she raised this a defence. In the circumstances, the only reasonable conclusion that one could draw was this was an afterthought, meant to stave off looming charges.
And indeed, that is the conclusion that the court arrived at. In the case of Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC) at para 26, the court said the following:
“The first step is to establish whether the respondent’s policy differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair…”
The court further held that “even if it can be said that in applying the policy to the Applicant there was perhaps some kind of differentiation because of her purported pleaded medical condition, the Applicant will still fail in establishing discrimination.”
In this regard, the court in Sithole and others v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74, it summarised the position as follows:
“… only specific kinds of differentiation would be impermissible. This would be differentiation that is irrational, or arbitrary, or based on what the court called a ‘naked preference’, or served no legitimate purpose. Differentiation that cannot be shown to fall within one of these categories would be permissible differentiation, the discrimination enquiry would be at an end there and then, and the discrimination claim must fail.”
Accordingly, the court determined that the respondent’s conduct was rational and served a legitimate purpose. There was no naked preference established. Hence there could be no case of discrimination.
Lastly, there was no evidence presented before the court to prove that the applicant was subjected to insulting, degrading, humiliating treatment which impaired her dignity as a result of the unfair and unconstitutional discrimination.
It is notable that the applicant raised the fact that the Constitutional Court had decriminalised/legalised the use of cannabis in a private space.
The court, however, noted that the Constitutional Court judgment does not offer any protection to employees against disciplinary action should they act in contravention of company policies. It also did not help the applicant’s case that she had also revealed she also uses cannabis for recreational purposes.