We’ve been waiting patiently for a headline like this to come along. At Fields Of Green For ALL we are never far away from another email describing how an employee was dismissed without warning for failing a cannabis drug test. It is probably the greyest area of last September’s Constitutional Court ‘privacy’ judgement. Cannabis users now have a constitutional right to use the plant at home in ‘private’, but three people who did just that, were fired from their workplace without warning for failing a urine test.
Pretty much every time it happens, we suggest the employee starts by taking the dismissal to the Commission For Conciliation, Mediation & Arbitration (CCMA), SA’s dispute resolution body.
Few people do. The majority are either too scared, or broke, or too crushed to deal with the pressure. The people in this instance worked for a wood chip factory in Durban who, like most South African companies, have a ‘zero tolerance’ to ‘drugs’ in the workplace. This means do not arrive at work intoxicated. However, this also means the company must be able to prove their employee is intoxicated – something as yet impossible to prove in the case of dagga.
The world over, governments are pouring money into the holy grail of drug testing; trying to figure out what ‘stoned’ is. It is easy to detect weed in the blood/urine/hair/DNA, but was the employee at the time too stoned to operate? Very unlikely in our opinion.
Local Constitutional Law expert Pierre de Vos waded into the argument which we were frankly, surprised to see. He has always been quite dismissive of cannabis in general so a critique by this esteemed expert was most welcome. In his Constitutionally Speaking column he laid out the facts of the case and surmised the CCMA had made a huge error, displaying a complete ignorance of the test procedure and what the results mean. His parting shot was “I suspect the dismissed employees from NCT Durban Wood Chips were hard done by.”
So do we.
South Africa isn’t unique with this problem of a blanket ‘zero tolerance’. Canada was the first G8 country in the world to ‘legalise’ cannabis in 2018. However, the word ‘legal’ is a bit misleading. There are new, draconian rules and regulations in place, including a resurgence of workplace drug testing. Workers are being fired for testing positive in a ‘legal’ country too which has prompted one Canadian attorney to remark “if you are in the job market…you would be well advised to abstain from cannabis”.
In the USA, California State legalisation has meant some companies are now walking back their zero tolerance policies because they know THC showing up in the system is absolutely no indicator of a person’s work ability. It’ll be a long time before the prejudice component of a drug test is put to rest. All this cannabis screening is simply discriminatory. Nothing’s changed with the ConCourt judgement in that respect.
We have a long journey ahead of us in this regard. Someone has to step up to the plate with a sympathetic legal team and get this thrashed out in a court of law. The courts have so far stood us in good stead on the road to full legalisation.
With front page headlines in two of the country’s most popular Saturday newspapers, and headlines on street poles like the ones above – we hope this is enough to ignite a much needed debate as to the unintended consequences of workplace testing. Let’s talk about the drug apartheid of what drug you’ll be tested for, the slim reason for being tested in the first place and the privacy and human rights violations of demanding someones bodily fluids on an arbitrary basis.
If this has happened to you in SA ,and you feel like telling us about it, please email us or leave your contact details in the comments below.