I shall reply to this question with reference to Keys/ GRI Wind Steel South Africa (Pty) Ltd – (2017) 26 MEIBC 8.37.8 also reported at (2017) 10 BALR 1046 (MEIBC).
In this case, an employee exhibited strange behaviour such as singing to certain pieces of equipment. The employer tested him for drugs, and the result was positive. He was sent home and was tested again after two weeks. Again the result was positive.
The employer then followed the required steps and the employee was dismissed. The commissioner found the dismissal to be fair because the employee first denied having been tested positively for drugs and then unsuccessfully tried to prove that he was seeking help. Furthermore, the employee was working with dangerous equipment, and it would pose a risk to himself and his colleagues if he was allowed to continue working.
In the more recent case of Mthembu and others v NCT Durban Wood Ships  4 BALR 369 (CCMA) the above finding was confirmed.
In this case, eight employees initially tested positive for prohibited substances, and the urine samples were sent to a laboratory for further tests. Four of the eight workers tested positive for the use of cannabis, or dagga, and were dismissed following separate disciplinary hearings.
The commissioner deemed the dismissal fair, because safety was of cardinal importance at the company since the employees were working with large machinery and vehicles. Furthermore, the internal policy of zero tolerance to the use of these substances was known to the employees and yet they did not adhere to the policy.
Consequently, dismissal will be fair:
- if the employee has contravened a rule or regulation with regard to specific behaviour in the workplace;
- if the rule that was contravened was valid, reasonable and fair;
- if the employee was aware or should reasonably have been aware of the rule;
- if the rule was being applied consistently in the workplace;
- if dismissal is more appropriate than a disciplinary measure in the specific circumstances; and
if the employer can prove:
- that there is indeed an effect off drugs;
- that the employee cannot or do not want to get any help; and
- that the employee holds a material danger to himself and others at the workplace and that he/she even contravenes safety legislation.
Author: Rezelle Botha