Dismissal for a positive cannabis test is fair says the CCMA

Dismissal for a positive cannabis test is fair says the CCMA

The Constitutional Court may have recently declared the private use of cannabis legal, but what is the impact of this on the workplace, and how does the private consumption of Cannabis, and alcohol for that matter, impact on employer rights?

The CCMA has however held, in Mthembu & others v NCT Durban Wood Chips (Case number KNDB4091-18), that employers are none the less entitled to discipline employees who are under the influence of cannabis during working hours.

The employer conducted business in the wood and chip industry, which involved the use of large machinery and “extremely dangerous vehicles coming in and out of the premises throughout the day”.  So, it’s quite clear that safety was of paramount importance to the employer, given the nature of the working environment.  This was all the more the case, given that large timber logs, weighing between 30 and 100 kilograms, were handled in the workplace, further emphasising the focus on safety.

There were sixty to eighty heavy duty truck deliveries into the mill daily

Evidence was led that the employees were informed of, and had signed, the company substance abuse policy in 2016.  In addition, frequent tool-box talks had reiterated the employer’s stance on substance abuse.

In mid-2017, an employee had resigned during his disciplinary hearing, after his urine sample tested positive for cannabis.  Further cannabis tests conducted at a laboratory, confirmed that four more employees had tested positive.

The employer testified that heavy-duty machinery is utilised the workplace, including a clipper which spins at five thousand revolutions, and takes approximately ten to fifteen minutes to stop, in case of an emergency. The ongoing delivery of timber into the mill by locomotive, poses further ongoing danger.

The employee’s themselves, were employed in dangerous positions.  One of the employees worked as a weigh bridge clerk, receiving trucks which he weighs, after inspecting them and testing the timber they are delivering.

A second employee sharpened and polished one meter long knives, three at a time.  A third employee was a log deck assistant, whose job it was to ensure that logs land on the log deck without being obstructed, and to manually clear any log obstructions.

The employees challenged the substantive fairness of their dismissals, uniformly claiming that they smoked Cannabis in their private time.

The arbitrator noted that the Constitutional Court in the case of Prince v Minister of Justice and Constitutional Development has “pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution.  However, turning to the workplace, the Arbitrator noted that “Like alcohol where there is an inkling that intoxication could impair one’s ability to work to the standard, care and skill required by the employer, the employer is entitled to discipline where the intoxication translates into an offence”.

The arbitration award goes onto recognise and confirm that “it is reasonable for employers to have in place rules prohibiting the consumption of such substances at the workplace or reporting to work under the influence of such substances” in workplaces with dangerous heavy machinery and equipment.  Quite clearly, workplaces of this nature pose   a high degree of danger.

Tellingly, the employees, according to the arbitrator, “showed no real remorse”.

The dismissals were held to have been substantively fair, and that, importantly, “It was for (the employees) to make sure that when they smoke for private use it must not result in them reporting to work under the influence thereof.  This is no different to consuming alcohol to such a degree the night before that the employee reports for duty under the influence the next day, placing himself and other employees and the company at risk and exposes the company to unnecessary financial claims and fines”, which could be pursued by the Department of Labour, for example.

The dangerous nature of the working environment was an important factor in this award.  In an environment which is less dangerous, or not at all dangerous, such as an office environment, a sanction of dismissal would have been harder to defend; in such cases, a final written warning would more likely be appropriate in the eyes of the CCMA or a Bargaining Council.

This case also highlights the importance of addressing substance abuse by way of a company policy.  It follows that company disciplinary codes should also include substance abuse, and intoxication, with recommended sanctions if an employee is found guilty in such cases.

The Assign Concourt TES Judgment tested at the CCMA

The Assign Concourt TES Judgment tested at the CCMA

Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case.  This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months.  The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.

A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work.  It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk.  It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months.  Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.

This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act.  It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly.  In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”.  In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.

As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.

By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable.  Indeed, “all parties conceded to this”.  This meant of course that the client was deemed to be the employer.  The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client.  The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects.  The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”.  The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”.  For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”.  For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.

“In respect of the acceptance clerk, no comparator was placed before me.  It was established as common cause that Swissport does not employ any other acceptance clerks.  A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work.  In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.

The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work.  Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required.  This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only.  For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.

Nationality as a reason for dismissal is discriminatory

Nationality as a reason for dismissal is discriminatory

So, what do you do when a client you are delivering goods to, using foreign drivers, informs you that they will no longer permit foreign nationals on their premises, and you have no alternative employment for them?

This was the scenario faced by the Labour Court in Francis Kanko & 2 others v Grindrod Fuelogic [Case number C602/14].

The facts of the case are pretty straight forward.  The employer had three fuel tanker drivers in their employ, who were foreign nationals, employed to deliver fuel to an Eskom power station.  At a point in time, Eskom informed the employer that it would, as a matter of national security, no longer allow foreign drivers on its sites.  The services of the three foreign drivers were then terminated by the employer, and it was a matter of dispute as to how the employment relationship ended.

According to the employer, the three drivers were not dismissed per se, as they had agreed to be retrenched by signing voluntary retrenchment agreements.  The drivers, on the other hand, contested this, arguing that they were, without prior warning, abruptly summonsed to a meeting with management. At this meeting, they were shown the Eskom correspondence prohibiting foreign nationals from entering its power stations, and informed that they therefore had no choice but to accept their retrenchment.  The drivers submitted that they then signed the retrenchment agreements, drafted by the human resources department, under duress.  None of them received any retrenchment pay.

More precisely, the drivers submitted that they had, according to the judgment “signed the agreement under duress and they were, in fact, dismissed without any consultation as contemplated by section 189 of the Labour Relations Act.  The only reason for their dismissal was their nationality; hence, it was automatically unfair as envisaged by section 187(1)(f)” of the Labour Relations Act.

The drivers, although foreign nationals, had valid South African heavy duty licenses and work permits.

Let’s have a look at the evidence led.

The employer’s primary witness, the regional manager, testified that if the employer had refused to comply with the new rule from Eskom that no foreign drivers would henceforth be allowed to enter its premises, the employer would have lost the contract.  He continued that the employer had no choice.  He led no evidence that the employer had attempted to persuade Eskom otherwise.

The three drivers were called into a meeting individually, they each signed retrenchment agreements, without duress.  Each meeting lasted for about thirty minutes, and the drivers were paid the balance of their salaries for the remainder of the month.  He conceded that the drivers were not paid any severance pay.

The drivers testified, in essence, that they were, without prior notice, asked to attend a meeting with management, at which they were shown a copy of the e-mail from Eskom, after which the regional manager informed them that the employer had no choice but to retrench them as there were no vacancies.  They were told to sign the retrenchment as there was no alternative.

The judgment posed the question “Did the employees in this case sign the agreements voluntarily, ie: without duress or coercion, unequivocal and with full knowledge of its terms and implications as a full and final settlement of all the issues?”

On this issue, the Court concluded that “On the facts and on the evidence before me, and on the probabilities, I am not persuaded that (the employer) has discharged that onus.  All three drivers were called in out of the blue, with no prior warning and without the benefit of a notice that is required by law in section 189(3) of the LRA.  They were presented with a fait accompli”.

All three drivers had consistently testified that the regional manager had insisted that, on leaving the meetings with signed agreements.  The judgment in Corns v Adelkloof Drankwinkel cc t/a Cellars Drankwinkel (2002) 23 ILJ 2047 (LC) was quoted as being relevant in this case – “The main objective of that meeting was to procure the applicant’s signature on the agreement, and to circumvent the requirements of section 189 of the Act … In my view, an agreement obtained in such unfair circumstances amounts to a nullity”.

Having found that the three drivers had been dismissed, the question then became whether, or not, their dismissals were automatically unfair.

The Court held that “the only reason for the driver’s dismissals were their nationality” and that “there can be no doubt that nationality as a reason for dismissal is discriminatory” and the dismissals were therefore automatically unfair.

The Court ordered the retrospective reinstatement of the drivers.