Cannabis in the workplace: the implications of enever V Barloworld Equipment, a division of Barloworld SA (Pty) Ltd (2022) 43 ILJ 2025 (LC)

Abstract

The Labour Courts in South Africa face many challenges in respect to cannabis-related issues within the workplace. This has been evident ever since the landmark constitutional ruling of Minister of Justice and Constitutional Development v Prince. The recent judgment of Enever v Barloworld Equipment (Pty), A Division of Barloworld SA (Pty) Ltd), highlights some of these challenges. The core challenge is in striking an appropriate balance between the rights between employers and employees, where our courts appear to tip the scale in favouring the employer. In Enever, despite the court acknowledging the fact that zero-tolerance policies prevent employees from being able to use cannabis within their own space, there was no attempt really made to rectify this issue. There is thus a need to provide greater protection for employees and achieve the ultimate aim of labour law, which is to effectively balance the rights between employers and employees. Another challenge relates to the testing for cannabis within the workplace. With no scientifically accurate method currently available for proving cannabis-induced impairment, many employers are of the view that for as long as an employee simply tests positive for the drug then an employer will be entitled to take disciplinary action. Many employers in South Africa make use of tests, such as urinalysis, which does not help in proving impairment but merely indicate recent use. As will be seen in Enever and various other decisions regarding cannabis, our courts appear to overlook the established jurisprudence in relation to testing for similar substances, such as alcohol, with no real justifications as to why they do this. I will consider two sources of foreign law, namely the United States of America (USA) and Canada respectively. Both jurisdictions have successfully struck a balance between balancing the rights and interests of the employee and employer following a fundamental shift in how cannabis is viewed societally and in the workplace. I will look to USA, where there has been a great shift towards accepting and normalising cannabis use, to determine exactly how selected the states effectively balance the rights between employers and employees. I will also consider lessons from Canada to tackle the testing issues for cannabis within the workplace and look at potential testing methods, which South African employers could adopt. It is clear, there is much development still to be made within the legal framework regarding cannabis regulation in the workplace and, as such, I will investigate and critically evaluate key changes that are likely to impact the regulation of cannabis in South Africa.