Dismissals for cannabis use : determining substantive fairness

Abstract

Since the Constitutional Court’s legalisation of the use of cannabis in private, dismissals for workplace infractions arising from testing positive for cannabis are on the rise. Such dismissals have been justified by employers on the basis of zero-tolerance policies. The standpoint being endorsed by the courts is that as long as the employer can justify the need for a zero-tolerance approach, dismissal is the automatic default position for the breach of the workplace rule. While the law on the workplace implications for cannabis use is still in its infancy, there is a substantive body of law, applicable to cannabis use, on dismissals for alcohol use in which zero-tolerance policies are also applied. Surprisingly, these established principles in respect of alcohol use have not been engaged with by the courts in dealing with cannabis related infractions. This article seeks to evaluate the recent court decisions and to determine whether the legal principles that are developing accord with the legislative framework and judicial requirements in determining the substantive fairness of a dismissal.