By Teboho Mokoena
In this column we look at the case of Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, case numbers JS 633/20 and JS926/20. The judgment was delivered on 1 June, 2022.
According to court records, the applicant (Enever) was employed by the respondent (Barloworld), from 11 April, 2007 until she was dismissed on 30 April 2020. At the time of her dismissal, the applicant occupied a position of Category Analyst which was a typical office or desk position. At the time of her dismissal, the applicant had an unblemished record.
The applicant testified in court that she had suffered severe constant migraine and anxiety which affected her general well-being, as well as tempering with her sleeping patterns.
Consequently, she was prescribed medication by her doctor 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 with sleeping.
Following the Constitutional Court case 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.
The applicant further testified that she also used cannabis recreationally by smoking rolled cannabis every evening to deal with insomnia and anxiety. This, according to her, also improved her overall health, outlook and her spirituality.
According to the applicant, smoking cannabis makes her feel closer to God which also assists in her quest to addressing her internal struggles.
The court heard that the respondent has an Alcohol and Substance Policy which the applicant was aware of. In terms of the respondent’s Alcohol and Substance Policy and in order to gain biometric access to the respondent’s premises, employees are required to undergo screening and/or medical tests.
On 29 January 2020, the applicant was made to take a urine test. The results came back positive for cannabis. On the same day, she was informed that she was unfit to continue working and was ordered to immediately leave the premises of the respondent.
She was subsequently placed on a seven-day “cleaning up process”. As part of the process, the test would be repeated on a weekly basis until the applicant was cleared by negative test results.
Her 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 was depleted she would then be placed on forced unpaid leave.
The court established that it was common cause 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 colleagues.
The applicant was also not in possession or suspected of being in possession of the cannabis while working at the respondent’s premises.
The court heard that during the period 29 January to 28 February 2020, she was denied access to the respondent’s premises as her further tests continued to detect cannabis in her system. This was so because the Applicant continued to use 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 sat and the applicant pleaded guilty to the charge on the basis that she has indeed tested positive for cannabis.
During mitigation, she 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 dependence.
A summary dismissal was imposed against the applicant.
The chairperson’s rationale for imposing dismissal as a sanction was that a final written warning would not serve any purpose because the applicant had refused to give up consumption of cannabis.
The Labour Court, having listened to arguments from both parties concluded that the applicant’s two claims of discrimination and automatically unfair dismissal must fail.
I am of the view, taking into account all of the circumstances and the law and fairness, that, notwithstanding the outcome of these two claims, there should be no order as to costs.
This case, like all others that I have shared on this column, raises critical issues which require further interrogation and elucidation.
I have therefore decided that the next column will continue to focus more on this case.
I will delve deeper into the arguments and counterarguments which were at play in this matter. Briefly, among others, I will focus on the following:
● Provisions of sections 6(1) and 11 of the Employment Equity Act which deal with Discrimination and Unfair Dismissal respectively; and
● The provisions of The General Safety Regulation 2A of the Occupational Health and Safety Act 11.
I will also look at the following case law which this court relied upon in arriving at, and framing its judgment:
- Transnet Freight Rail v Transnet Bargaining Council and others (2011) 32 ILJ 1766 (LC) at para 19;
- Harksen v Lane N O and others 1998 (1) SA 300 (CC) at para 4;
- Kroukamp v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC);
- Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC).
- Exactics-Pet (Pty) Ltd v Petalia NO and others 4 (2006) 27 ILJ 1126 (LC) at para 12;
- Mgobhozi v Naidoo NO and Others 5 (2006) 27 ILJ 786 (LAC);
- Gcwensha v Commission for Conciliation, Mediation and Others (2006) 27 ILJ 927 (LAC) at paras 24 and 32;
- Sethole and others v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC) at para 69