Personal or recreational use of marijuana was declared unconstitutional and decriminalised in terms of South African laws in the case of Minister of Justice v Prince.
In terms of the Medicines Act, marijuana (THC) may now, in private and for personal use, be consumed by an adult.
However, legalised personal use does not mean that employees are entitled to test positive for the substance, report for duty under the influence, or possess the substance while on duty.
NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd held that employees may be dismissed for testing positive for Cannabis while on duty, specifically considering the nature of the workplace and provided that the employer may adopt a policy prohibiting the use of drugs in the workplace (zero-tolerance policy) and that its employees have been made aware of such policy.
Having taken into consideration the employer’s industry and employee’s duties, the mere presence of the substance in an employee’s system will not necessarily be sufficient to prove that the employee is under the influence of the substance.
The test lies with the differentiation between whether the employee is under the influence of the substance, which is affecting or impairing the employee’s ability to perform their duties, appearance and behaviour, as opposed to testing positive.
Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.
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