South Africa’s drug laws are changing, and with the recent Cannabis for Private Purposes Act, businesses need to make sure their drug testing policies are fit for purpose – both legally and for workplace safety. Ignoring these changes can expose companies to significant legal risks and undermine employee relations, as highlighted by Enever v Barloworld Equipment South Africa. Bernadette Enever’s dismissal for private cannabis use, subsequently ruled unfair by the Labour Appeal Court, serves as a warning for employers to urgently revisit and adapt their substance policies to reflect the current legal realities with an emphasis on demonstrable on-duty impairment. This isn’t just about ticking a legal box; it’s about ensuring policies are relevant, defensible, and respectful of employee rights in this new era.
The Barloworld case – a wake-up call for businesses
The landmark case of Enever v Barloworld Equipment South Africa illustrates the dangers of relying on a blanket zero-tolerance approach to substances in the workplace. Bernadette Enever, an employee of Barloworld, faced dismissal after testing positive for cannabis, which she openly admitted to using in her private time. Despite a long and unblemished 15-year work record and the concession that she was never impaired at work nor held a safety-critical position, Barloworld’s zero-tolerance policy led to her termination.
However, the Labour Appeal Court (LAC) delivered a decisive ruling in Enever’s favour, deeming her dismissal automatically unfair. The court’s judgement brought attention to a critical principle – a positive cannabis test alone, particularly when the employee admits to private use and shows no signs of on-duty impairment, is insufficient grounds for disciplinary action. The LAC emphasised the need for concrete evidence demonstrating actual impairment on duty to justify such measures. The court went on to point out that because cannabis metabolites can remain detectable in the body long after the psychoactive effects have worn off, traditional urine tests are unreliable indicators of current impairment.
Based on its findings, the LAC ordered Barloworld Equipment South Africa to compensate Ms. Enever with 24 months’ remuneration, which amounted to a substantial payout, reported to be over R1 million. In short, the court’s order held Barloworld accountable for relying on an outdated and overly broad drug testing policy that unfairly penalised an employee for legal, private cannabis use without any evidence of on-duty impairment.
Time to update policies and procedures
As a result of this case, there is now an urgent need for companies across South Africa to revisit their workplace drug testing policies. Relying on outdated protocols not only exposes businesses to potential legal challenges and costly compensation payouts, as experienced by Barloworld, but also infringes upon employees’ rights to privacy and dignity.
A policy that punishes employees for legal, private conduct unrelated to their work performance is not only unfair but also potentially discriminatory. This decision makes it clear that a strict zero-tolerance approach is no longer legally acceptable because it fails to differentiate between private, responsible use and workplace impairment. Furthermore, given that the court pointed out that traditional urine testing is insufficient to prove impairment, it is necessary for organisations to rethink their testing procedures at the same time as their policies.
Here, investing in advanced drug testing technologies is a necessity for businesses committed to maintaining a safe and legally compliant work environment. Modern testing equipment has made significant strides, and mobile testing systems enable accurate, on-site assessments of current impairment with sophisticated technology that can detect a broad spectrum of substances in oral fluid. These instruments can provide results that correlate more closely with recent use and actual impairment, typically within a 2-6-hour window for cannabis, which allows employers to differentiate between recent consumption that could impact workplace safety and residual traces from off-duty use.
Balancing workplace safety with employee rights
By investing in advanced testing technology and proactively updating their drug policies, businesses can take a smarter, legally sound route. This forward-thinking approach brings key advantages: reduced legal trouble by aligning drug policies with the Enever ruling and fairness/privacy laws, and increased safety at work by concentrating on tests that show actual impairment rather than just past use, as well as more productive teams through fair and clear policies coupled with respectful testing, which reduces employee worry and resentment.
However, quietly updating workplace policies and purchasing new equipment is not enough. Education and awareness play a vital role in ensuring employees understand updated drug policies. Clear communication from employers on the rationale behind the policy, the testing methods that will be employed, and the consequences of on-duty impairment is critical, as it is important to address misconceptions and provide accurate information in order to gain acceptance and compliance from the workforce. For instance, employees need to understand that whilst private cannabis use is decriminalised, being impaired at work remains unacceptable and can lead to disciplinary action. It is also advisable to provide clarity on the detection windows of different testing methods to help employees understand the implications of their off-duty conduct.
Moving beyond zero tolerance to modernise drug testing
The Enever v Barloworld Equipment South Africa ruling serves as an important turning point in how South African employers address workplace drug testing. It is clear that outdated, zero-tolerance policies are no longer adequate, and for businesses to operate effectively and ethically, a proactive stance must be taken. This means updating policies, considering advanced impairment testing technologies and prioritising employee understanding and buy-in.
By embracing this approach, companies will not only protect themselves legally and ensure a safer workplace but also build a more equitable and respectful culture that benefits everyone and contributes to a more productive and harmonious work environment. It’s high time for every organisation to reflect on its current drug testing policy and consider the necessary changes.
Opinion piece by Rhys Evans, Managing Director at ALCO-Safe.
