A protracted-serving worker who was fired after repeatedly testing constructive for hashish, in breach of the corporate’s guidelines, has failed in her bid to be reinstated.
Bernadette Enever, who had been employed in an workplace place at Barloworld Equipment since 2007, mentioned she used hashish oil for medicinal causes and smoked it recreationally for “spiritual”causes”.
She wished the labour court to declare her dismissal in April 2020 to be grounded in “unfair discrimination” and mechanically an unfair dismissal.
But Johannesburg Labour Court Acting Judge Makosho Ntsoane has dismissed her utility, saying the corporate handled all workers the identical.
If Enever wanted to use hashish for medicinal functions, she ought to have introduced proof of that. Instead she had solely made the declare as an “afterthought”, after she had been caught out.
In a abstract of proof, the choose mentioned Enever had an unblemished disciplinary document when she first examined constructive in January 2020.
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Enever instructed of how at one stage, due to varied illnesses, she was taking on to ten pharmaceuticals a day. Following the decriminalisation of hashish for private use by the Constitutional Court, she had weaned herself off the capsules utilizing hashish oil.
She additionally smoked rolled hashish each night to help with insomnia and anxiousness which had improved her “bodily health, outlook and spirituality”.
The choose mentioned the corporate had a zero tolerance coverage in direction of alcohol and medicines and required workers to endure common exams.
When Enever had first examined constructive, she was positioned on seven-day “cleaning up” depart, a course of which entailed that the take a look at can be repeated weekly till she examined destructive.
It was frequent trigger, the choose mentioned, that when she examined constructive, she was not “stoned” or unable to carry out her typical desk duties. She was additionally not in possession of hashish.
Enever continued to fail the weekly exams for a month and she or he was charged with breaching the corporate’s Alcohol and Substance Abuse Policy.
Following a listening to, she was fired, the chairperson indicating that there was no level in giving her a last written warning as a result of she had “unequivocally refused to give up consumption of the cannabis”.
Enever, in her case earlier than the Labour Court, claimed the coverage was unfair and discriminatory.
Judge Ntsoane mentioned the unchallenged proof was that she was always conscious of the coverage. The firm had led proof that it had been utilized constantly to all workers.
“Indeed, everyone seems to be entitled to use hashish in their very own area and for leisure functions. Similarly everyone seems to be entitled to eat alcohol in their very own personal area and time.
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This nonetheless doesn’t imply that if an worker who consumed alcohol the earlier evening occurs to take a look at constructive, the (firm) would have to take cognisance of the truth that such alcohol was consumed within the worker’s personal area and time.
“It also does not matter that (Enever) was not impaired when she tested positive. She has to comply with the rules.”
He mentioned in mild of the damaging surroundings, the corporate was entitled to its zero tolerance coverage and the Constitutional Court judgment didn’t provide any safety to workers in opposition to disciplinary motion ought to they breach firm insurance policies.
He mentioned Enever had argued that the corporate “should understand ” that hashish and alcohol had been completely different in that alcohol may filter out of somebody’s system shortly, whereas hashish can keep for days or even weeks.
But, he mentioned, she had been handled the identical approach as different workers and if she had been handled otherwise “it would be seen to be creating a precedent” and would place an unfair burden on the corporate.
On the difficulty of her medical situation, the choose mentioned there had been no “persuasive evidence” of this, and prior to testing constructive she had not volunteered this data to the corporate however solely sought to increase 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 mentioned Enever had indicated that she wouldn’t cease utilizing hashish and the listening to chairperson had accurately discovered {that a} last written warning would serve no goal.
He dismissed her claims of discrimination and mechanically unfair dismissal, however made no order as to prices.
This article first appeared on GroundUp and was republished with permission. Read the unique article here.
