On 18 September 2018, the Constitutional Court handed down its much publicised cannabis judgment which has far reaching implications in regards the private cultivation and/or use of cannabis. This is the Minister of Justice and Constitutional Court Development and Others v Prince (Clarke and Others intervening) (CCT108/17)  ZACC 30.
The crux of the judgment is encapsulated in paragraph 109 thereof, which states that “the effect of the above reading-in is the following: (a) an adult person may, use or be in possession of cannabis in private for his or her personal consumption in private, (b) the use, including smoking, of cannabis in public, or in the presence of children or in the presence of non-consenting adult persons is not permitted, (c) the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted, and (d) the cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offense”.
As such, the use, possession and cultivation of cannabis is now permitted in one’s home or a ‘private dwelling’.
This has widespread implications for society at large, including the workplace. This judgment should not be interpreted as a legalization of cannabis. On the contrary, it is a judgment which decriminalizes the cultivation, possession and use of cannabis in private.
As far as the workplace is concerned, this judgment has important workplace-related implications, more especially in the areas of misconduct, incapacity, and occupational health.
Employers would be well advised to review existing disciplinary and drug related policies to ensure that this judgment has no negative impact on the workplace. This would include a reconfirmed prohibition on the use of drugs (including cannabis) and alcohol, confirming that usage would amount to summary dismissal. Important in all matters of this nature is the existence of a rule, and proof that employees have knowledge of the rule.
It should be remembered that the mere presence of a drug in an employee’s bloodstream does not as and of itself, prove that the employee is under the influence of the drug in question. The same applies to alcohol. What has to be determined is whether the consumption of a drug, for example cannabis, has resulted in the performance, conduct and behavior of the employee being impeded, to the extent that they are a safety risk to themselves and/or others, and are incapable of meeting their minimum performance requirements.
Section 7(1) of the Employment Equity Act (55 of 1998) addresses medical testing at work, and stipulates that “Medical testing of an employee is prohibited unless (a) legislation permits or requires the testing; or (b) it is justifiable in the light of medical facts, employment conditions, social policy, the fiar distribution of employee benefits or the inherent requirements of the job”.
Given key employer occupational health and safety obligations, an employer would be compelled to test an employee suspected of being under the influence of cannabis, or any drug or alcohol). The safety of employees cannot be compromised.
Employer policies relating to the use, possession and cultivation should be clearly drafted, confirming that the workplace is not a ‘private dwelling’. Such policies should also clearly confirm that employees who are, for example. Cannabis dependent, should approach the employer in confidence, so as to initiate a process which recognises this dependency as a case of incapacity, rather than misconduct.
In addition, especially in workplace environments which are inherently dangerous, emphasise the fact that the use, possession and cultivation of cannabis amounts to an ct of gross misconduct, sanctionable by way of summary dismissal.
In short, it would be prudent to update existing drug policies and disciplinary codes to accommodate this recent Cannabis judgment. The prohibition on the use, possession and cultivation of cannabis at work is premised upon the fact that a workplace is a public, not private, place, and employer’s would be well advised to emphasise this in amended policies.
So there we have it. This judgment is not a license for employees to use, possess and cultivate cannabis at work.
It should go without saying, that employees have an absolute employment obligation to be honest at all times, in the course of their employment with an employer. This even extends to employees furthermore having an obligation to expose the dishonest acts of their colleagues, which they have knowledge of, and the extent that it can proved that they turned a blind eye to a colleague’s dishonesty, that employee is guilty of so-called derivative misconduct.
Dishonesty also goes by many euphemisms. In disciplinary hearings, employees occasionally state that they were ‘borrowing” the item, with every intention of returning it to the employer, or that they removed the item inadvertently. In a recent case, the employees adopted yet another euphemism, namely that they had not in fact stolen the items, but had, improbable as it sounds, taken them without permission.
This was the case in NASECGWU obo Seleka, J & 1 other v Lime Acres Family Store (CCMA Arbitration Award number NC1400-15).
The allegation levelled against the two employees was, quite simply, “stealing pies from the” employer.
According to the employer, a manager “investigated the matter where the Applicants were charged with stealing pies from the Respondent. The Applicants were busy baking pies and they appeared in the video footage stealing pies. The Applicants were called in for questioning and they were given a chance to tell the truth before they were shown the video footage, but they denied stealing. Only after they saw the video camera, they admitted to have eaten the pies and indicated that they were hungry. The Respondent indicated that the Applicants were dishonest and their work was to bake pies, their dishonesty broke the trust relationship. The Applicants did not ask permission to eat and the video showed that they have been stealing on a daily basis from 25 to 28 April 2015. The video could only be reversed to 25 April 2015, the Respondent indicated that there are possibilities that the theft was happening even prior to the dates in question”.
It was further testified to by the employer that the employees pleaded guilty. At the hearing, it was acknowledged that “during the interviews the Applicants were told that they have a responsibility of reporting theft when they witness it at the workplace. They knew that theft was a serious offence. He indicated that taking something which belongs to someone else without the person being aware of it and using it is theft and that is what the Applicants did”.
However, the employees submitted that they were unfairly dismissed for theft. On the contrary, and somewhat absurdly they “agreed that they took the (employer’s) pies without asking and ate them … but argued that their actions were not that of theft”.
It gets more interesting. They then went on to testify that “they pleaded guilty at the disciplinary hearing for taking the (employer’s) property without consent but not for theft”. But the Applicant’s had further, even more absurd testimony. They continued that “theft is when someone take someone else’s property and leave the premises with it. They did not leave the premises, but ate the pies inside the premises and therefore, they were not guilty of theft”.
SAs far as the company rule prohibiting theft was concerned, they stated that “there was no rule at the workplace about theft and that the code of conduct is available at the workplace, but is placed at a high place by the wall and they could not read it”, yet continued that “since this was a first offence, dismissal was harsh and a written warning would have been fair”.
Unsurprisingly, the Commissioner held that “It is the Applicant’s case that they took the Respondent’s goods without permission and consumed the goods. It is also the Applicant’s testimony that their intention for taking the pies was to consume them. The Applicants acknowledged in their evidence that what they did was wrong, they were aware that their conduct was wrongful. By taking the pies without permission and consuming them, the Applicants permanently deprived the Respondent from the use and possession of its property, which are the pies. It is clear that the charge sheet indicated theft as a charge, the Applicants in their evidence confirmed that they pleaded guilty. It is unreasonable for the Applicants to say that they pleaded guilty for taking the goods without permission, but not for theft while they admitted to have intended to consume the Respondents goods”.
In conclusion, it was held that “From the evidence given at the arbitration, it is clear that the Applicants did not take the Respondent’s goods only for one day, but this act happened consistently over a period of a week. During arbitration, the Applicants did not show any sign of remorse and insisted that they had a reason for taking the Respondent’s goods in that they were hungry. The action of eating the Respondents? pies without permission, while in a position of trust is sufficient to constitute theft. The action of the Applicants had an element of dishonesty for which dismissal is an appropriate sanction”.
Probation periods are dealt with in some detail, in Section 8 of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal). To begin with, it is imperative that employers include a probation period in contracts of employment, and equally imperative that the process of probation is properly managed, so as to ensure that all the benefits from including a probation period in the employment contract, are realized.
Probationary periods are only applicable if they are specifically referred to in a contract of employment. Probation periods ought not automatically therefore form part of an employment relationship.
Section 8 of the Labour Relations Act begins by stating that “an employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed”. It continues that “the purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment”.
In Crawford v Grace Hotel (2000) 21 ILJ 2315 (CCMA) the purpose of probation was described as follows – “Employment decisions may, and, with hindsight, often do turn out to have been imprudently made, which is not surprising considering the limited information and knowledge of the (employee) available to the employer at the time of recruitment. It is to afford employers a reasonable opportunity to correct such errors in recruitment and selection without having to incur costs to the business, financial and otherwise”.
Probation periods can vary in length, Schedule 8 of the Act deals with this in providing that “the period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment”. It follows that relatively uncomplex jobs will have a relatively short probation period, and more complex positions a longer probationary period. For example, when hiring a finance manager after completion of a year-end, it would be deemed reasonable for there to be a 12-month probation period, as it would take a further 12 months to assess the competence of the newly appointed financial manager in completing the next financial year end, which would be approximately 12 months after his or her appointment. The probation period for a switchboard operator, however, could be relatively short, as competence in the management of a switchboard could reasonably be assessed in a matter of weeks.
In the CCMA arbitration of Yeni v SACP (Case number: KN2250-97), it was noted that “the circumstances of the job relate to the nature of the job and the time it takes to evaluate the employee’s suitability. A simple job with very little required skills will need a far shorter period than a high-powered job with special required skills to establish the employee’s suitability of the job. A probation period could therefore be days or months depending on the circumstances”.
Importantly a probationary employee’s performance should be assessed during the course of the probationary period, with feedback on performance and compatibility being given to the probationary employee, at regular intervals. Schedule 8, Section 8 of the Labour Relations Act, deals with this in Section 8(e) which states that “during the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counseling in order to allow the employee to render a satisfactory service. In practice, more especially regarding smaller employers, it is required that the employee is made aware of their shortcomings in performance, and given reasonable time to improve upon them.
Probationary employees should be informed of areas of performance which the employer is unhappy with, and given reasonable time to improve.
If, at the end of a probationary period, the employer is not entirely happy with the employee’s overall performance, the employer is quite entitled to extend the probation period, to afford the employee further time to close performance gaps. This may only be done, however, after the employer has invited the employee to make representations and has considered any representations made”.
The same applies to dismissal during, or at the end of, a probationary period.
Importantly, section 8(j) of Schedule 8 of the Labour Relations Act states that “any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
Our case law authority has, for some time, recognized that the pre-dismissal procedures required to be applied in cases of poor work performance dismissals for ordinary employees, do not apply to quite the same degree when dealing with senior managerial or executive dismissals for poor work performance.
Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal), at section 9, provides “guidelines in cases of dismissal for poor work performance”. These guidelines apply to, for want of a better term, ordinary employees, and stipulate that when the fairness of a dismissal for poor work performance is being assessed, it should consider “(a) whether or not the employee failed to meet a performance standard, and (b) if the employee did not meet a required performance standard, whether or not (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; (ii) the employee was given a fair opportunity to meet the required performance standard; and (iii) dismissal was an appropriate sanction for not meeting the required performance standard”.
A number of judgments are worth visiting in regard the manner in which executive level dismissal cases should be approached. The first is that of Somyo P v Ross Polutry Breeders (Pty) Ltd (GA9/97). This case related to the dismissal of the manager of a chicken farm for various allegations relating to poor work performance. This landmark judgment noted that “an employer who is concerned about the poor performance of an employee is normally required to appraise the employees work performance; to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee a reasonable opportunity to improve his performance… those requirements may not apply in two cases… the first is the manager or senior employee whose knowledge and experience qualify him to judge for himself whether he is meeting the standard set by the employer… and second, where.. the degree of professional skill must be required is so high, and the potential consequences of the smallest departure from that higher standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal.
The judgment more especially noted that the manager “was not an ordinary employee”. In this regard, the Labour Court was drawing a distinction between the manner in which senior managerial dismissals for poor work performance, deviates from the procedure required to be followed in cases of ordinary employees.
The landmark judgment most frequently referred to in cases of senior managerial dismissals for poor work performance, is the Labour Appeal Court case of HPN Brereton v Bateman Industrial Corporation Ltd & Others (Case number: GA80/99). Amongst other things, this judgment made reference to an English case, namely that of E C Cook v Thomas Linnell & Sons (1997) IRLP132 in which an employment appeal tribunal, in the head note of the judgment, stated that “the appellant had been fairly dismissed from his post as manager of the respondent’s food depot on grounds of the employer’s genuine loss of confidence in his ability. Although employees must act reasonably when they are moving from a particular post an employee whom they consider to be unsatisfactory, it is important that the operation of unfair dismissal legislation should not impede employer’s unreasonably in the efficient management of their business. The quality of management is an imponderable which it may be difficult to assess precisely. Therefore, when responsible employers have genuinely come to the conclusion over a reasonable period of time that a manager is incompetent, that is some evidence that he is incompetent, although it is necessary to look to see whether there is any other supporting evidence. The heading continues that when poor work performance is evident in an area “it is reasonable for employers who have no confidence in their manager to come to the conclusion that he shares some responsibility for it”.
The Brereton LAC judgment drew attention to the fact that “the first question to be considered is whether it is incumbent upon his employer to warn him that his performance is falling short of the standard required of him (the employee) and so afford an opportunity to rectify the position before steps are taken to terminate (the employees) employment. It has been recognized by the courts that in respect of this requirement, the position of a senior manager differs from that of an ordinary employee. Because of his situation and the overall view of the business which he enjoys as a result thereof, he will ordinarily be aware of the shortcomings in his performance and the adverse consequences to the business resulting there from. He will likewise himself appreciate the necessity to remedy the situation without it being drawn to his attention by another. It will be pointless to insist upon his being warned of a situation of which he must already be fully aware.
The judgment continues that “the second situation recognized by the courts in which the necessity for a warning may be dispensed with is where the poor performance of the officer concerned is so gross, and its consequence is so serious, that it will be unfair to require the employer to suffer any further delay in terminating his employment”.
One of the challenges faced by employers is the use of personal cellphones by employees during working hours. This is particularly problematic when the use of personal cellphones at work poses a risk to health and safety. This was the set of circumstances that was being dealt with in the CCMA arbitration hearing in NUMSA obo Nyamande, C. J. v National Glass (GAEK1922-17).
The facts in this case were quite simple. The employer was a supplier of glass and aluminum products. The employer was a warehouse assistant, whose duties included the driving of the forklift truck. The employee was charged with “health and safety, on 23 January 2017, you were caught by your warehouse manager, Wesley Palm, talking on your cellphone whilst operating the forklift as seen in (the below) footage”.
According to the employer, they had a prior progressive discipline to remedy the conduct of the employee regarding health and safety requirements. This had included counseling for failing to wear safety glasses, sitting on the front forks of a forklift being driven by a colleague, and having had an accident in a company vehicle, resulting in damage to the vehicle of approximately R42 000.00.
The employer submitted that the employee was well aware of the health and safety rules, as these had been encapsulated in the employee’s contract of employment. The hearing was conducted by way of a teleconference as the employer’s head office was located out of town. The employee was represented by a shop steward at the hearing, who did not object to the hearing being conducted by way of a teleconference.
The employee pleaded guilty to the allegation in question at the disciplinary hearing, presented mitigating factors as to why he had spoken on his cellphone whilst driving the forklift truck. In this regard, he submitted that he had received a number of missed calls from his mother and he was anxious to establish the reason for these calls.
In analyzing the evidence, the Commissioner held that there was no evidence to indicate that the employee was adversely affected by the fact that the hearing was conducted via telephone conference. No objection had been lodged at the time regarding the telephone conferencing of the hearing. In this regard, the Commissioner, in the arbitration award, noted that, “the outcome of the hearing would have been the same, as the applicant had admitted to using his cellphone whilst operating a forklift”. The dismissal of the employee was therefore held to have been procedurally fair.
In regards the substantive fairness of the dismissal, it was not in dispute that the applicant spoke on his cellphone whilst operating the forklift. Evidence had been led by the employer to show that the employee was aware of the rule related to speaking on cellphones whilst driving a forklift; this had been addressed on both his employment contract and the employer’s disciplinary code, both of which had been signed by the employee.
It was noted that the employee did not “endanger anyone or himself when he spoke on his cellphone whilst operating the forklift”. The Commissioner noted that the employee had “denied that he was aware of the rule related to safety issue”. The arbitration award held that the employee had been found guilty of the charge, and then turned itself to an assessment of whether dismissal was an appropriate sanction for contravention of the rule in question.
The arbitration award further held that the employee “deliberately broke a rule that he was aware of and by virtue of the fact that the employee had a prevailing final written warning for related safety matters at the time he was found guilty of driving the forklift truck whilst talking on his cellphone “no other disciplinary action could be taken other than to dismiss” the employee. It was further noted that the applicant’s disciplinary record all related to the transgression of safety rules, and the employee “was a serial transgressor of safety rules”. To make matters worse “the (employee) was not remorseful”.
Employee usage of personal cell phones during working hours hampers productivity and, as evident in this case, can compromise safety.