In SA, a company has been ordered to reinstate employee fired for smoking cannabis before work

South Africa’s labor dispute resolution body, the Commission for Conciliation, Mediation and Arbitration (CCMA), has ruled that an employee, who was fired after he admitted smoking cannabis before reporting for work, should be reinstated.

According to GroundUp, Nomsa Mbileni, a commissioner at CCMA, ruled the termination of Ofentse Rakang’s employment at the Rankeng/Signature Cosmetics and Fragrance company in June 2019 was too harsh and ordered his employers to reinstate him.

Rakang, a “picker” at the company, was summoned by his supervisor, Farhaad Ebrahim, for questioning in May 2019 after he reported late for work. During their conversation, Ebrahim told the commission at the hearing in Johannesburg he realized Rakang had red and watery eyes, and he initially suspected he had caught the flu or cold. Rakang was, however, adamant he was fine.

After Rakang was pressed further, he admitted smoking a joint of “zol” – the local slang for a hand-rolled cannabis cigarette – at his home about two hours before getting to work at 7 am. Ebrahim also claimed Rakang became argumentative at a certain point during the questioning and alleged it was as a result of the cannabis. The results of a drug test he subsequently undertook came back positive for cannabis, and he was later fired for flouting company laws by taking the banned substance, GroundUp reports.

During the hearing, Rakang, who represented himself, was adamant he wasn’t “under the influence”, and went ahead to ask why he was still allowed to go back to work after the questioning and despite admitting he had smoked cannabis. He further justified his argument by claiming the test was inconclusive as it only confirmed he had tested positive for cannabis but did not determine if he was “under the influence” as a result.

The commissioner overseeing the case also cited a company policy which stipulates employees suspected of being under the influence of banned substances are supposed to be ordered to leave the premises.

“It further provides that whether or not an employee is fit to report for duty will be determined by management by exercising reasonable discretion … It would appear in this case that the reasonable discretion was that he was fit to continue working (albeit in a different area) … The problem with a charge of being under the influence of drugs is that there has not been any scientific determination of whether there is an impairment of performance,” Mbileni said.

Mbileni concluded that even though Rakang had tested positive for cannabis, there wasn’t any evidence to prove he was unable to work. As a matter of fact, he was even allowed to resume duty.

“In my view that was an acceptance that although he admitted to smoking cannabis, and subsequently tested positive for it, it had not affected his ability to perform his work,” she added.

Mbileni concluded Rakang’s punishment was too harsh despite flouting company policy and ordered his reinstatement, GroundUp reports. Rakang is, however, not entitled to back pay and he was issued a final written warning for a period of twelve months.