Is Workplace Drug Testing Banned? An Analysis of Enever v Barloworld Equipment

On 23 April 2024, the Labour Appeal Court (LAC) delivered a pivotal judgment in Enever v Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd [2024] 6 BLLR 562 (LAC) (Enever II), overturning the Labour Court's ruling. The original decision had upheld the dismissal of an employee following a positive cannabis drug test. In contrast, the LAC ruled the dismissal was automatically unfair and discriminatory on arbitrary grounds, criticizing the employer's drug testing protocol as "irrational" (para 63). This significant decision has raised questions about whether workplace drug testing is now effectively prohibited, placing employers in a difficult position when it comes to maintaining safety in the workplace.

The Earlier Prince Decision

In 2018, the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as Intervening Parties, Doctors for Life International Inc as amicus curiae) 2018 (10) BCLR 1220 (CC) decriminalized the use, possession, and cultivation of cannabis for personal, private use (para 129). This ruling affirmed the constitutional right to privacy, allowing individuals to use cannabis within their own homes. However, the implications of Prince have extended into the workplace, particularly in the context of drug testing, where traditional urinalysis methods have come under scrutiny due to their prolonged detection periods, which can detect cannabis use weeks or even months after consumption. This raised the question: what happens when an employee tests positive for cannabis use in their private time but reports to work afterward? (Dr Greg Kew, Review of the Labour Court of Appeal Judgment in the matter between Barloworld Equipment and Bernadette Enever, www.saiosh.co.za, accessed 8-7-2024).

For years, this issue remained unresolved, even as dismissals for positive cannabis tests continued in the courts despite the decriminalization set forth by Prince (K Newaj, Dismissals for Cannabis Use: Determining Substantive Fairness (2023) 44 ILJ 683). The matter reached a turning point in Enever II, where the court held that drug testing policies must align with the Constitutional Court’s framework, rejecting any attempts by employers to override constitutional privacy rights (para 34).

Background Facts

On 29 January 2020, Ms. Bernadette Enever, employed as a category analyst, was required to undergo a urine drug test, which came back positive for cannabis use (para 10). Enever admitted to using cannabis for health and religious reasons, stating that it brought her closer to God (para 25). Following a disciplinary hearing, she was summarily dismissed on 30 April 2020 (para 12). Enever then lodged claims of automatic unfair dismissal under section 187(1)(f) of the Labour Relations Act and discrimination under section 6(1) of the Employment Equity Act. In Enever I, the Labour Court ruled that her dismissal was not unfair, deeming the case an ordinary misconduct issue rather than one of discrimination (para 47-48). Dissatisfied with the ruling, Enever took the matter to the LAC, which resulted in the landmark decision of Enever II.

The LAC’s Rationale

Enever II marks a significant shift in how drug testing policies are interpreted within the South African legal framework. The LAC identified a fundamental flaw in urine drug testing, particularly its inability to detect current impairment at the time of testing due to the long detection window for cannabis. The LAC was tasked with addressing four key issues (para 20):

1. Whether the employer discriminated between the appellant and other employees.

2. Whether there was a direct link between her positive drug test and her dismissal, raising concerns of discrimination based on spirituality, religion, or belief.

3. Whether the employer’s drug policy was discriminatory.

4. Whether the policy violated the employee’s dignity.

The court dismissed the first issue, as the employer conceded that the dismissal was directly linked to the positive drug test (para 21). On the second issue, the LAC determined that although Enever had invoked spiritual reasons for her cannabis use, the dismissal was not linked to these beliefs, as she also admitted to using cannabis recreationally (para 25). However, the court found that the drug policy was flawed, particularly in how it treated alcohol and cannabis users similarly, even though the testing methods for these substances differ significantly in detecting impairment (para 52).

Although employers have a legal duty to ensure workplace safety, the LAC emphasized that this obligation does not justify infringing on employees’ constitutional rights to privacy and dignity (para 35). By forcing employees to choose between their job and their right to use cannabis privately, the employer’s policy was deemed to violate these fundamental rights (para 60).

Implications for Employers

The Enever II decision has created uncertainty for employers regarding workplace drug testing. While the court’s judgment protects employees’ privacy rights, it has left a gap in determining how employers can ensure workplace safety, particularly under section 8(1) of the Occupational Health and Safety Act 85 of 1993 (para 34). Employers are now faced with navigating this ambiguity while balancing their obligation to provide a safe working environment.

In NEHAWU v University of Cape Town and Others 2003 (2) BCLR 154 (CC), the Constitutional Court held that the right to fair labour practices applies to both employers and employees. However, the LAC's decision in Enever II potentially undermines employers' ability to implement fair labour practices, as it restricts their ability to use drug testing as a tool to ensure workplace safety.

Conclusion

While the Enever II decision advances the protection of employees' privacy rights concerning cannabis use, it raises significant concerns for employers seeking to maintain safe working environments. A total ban on workplace drug testing could infringe on the constitutional rights of employers to ensure fair labour practices for all. The uncertainty surrounding drug impairment and workplace safety calls for further legal clarity on how cannabis consumption should be managed in the workplace.