The recent Constitutional Court judgment legalising the consumption of cannabis by adults in their own homes, changed the South African landscape forever.
ACJ Zondo stated that: “the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her own personal consumption to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.”
The Court, however failed to address certain practical implications. What would happen when an Employee consume cannabis in the privacy of their own home and then reports for duty? How is the legalisation of the consumption of cannabis going to affect the workplace? Does it imply that an Employee can now consume cannabis whilst at the workplace? Must the Employer turn a blind eye because it is now legalised?
Must Employees disclose to their Employer that they consume cannabis at home?
The Constitutional Court’s judgment did not extend the legal consumption of cannabis to the workplace. An Employee therefore won’t be able to argue that his/her rights to privacy are being infringed when the Employer refuses to allow them to smoke cannabis during their workday or on the premises of the workplace.
Employees will however be allowed to have cannabis on their person/ in their handbags and/or in their back-packs. An Employee that has cannabis in their private possession will therefore not commit an offence and/or crime. Thus, Employers will not be allowed to search the person and personal belongings of their Employees on suspicion of them being in possession of cannabis.
The problem that Employers now have to address is, what must they do when an Employee reports for duty whilst being “high” from the cannabis that he/she consumed at home? Can the Employee be charged with misconduct for reporting for duty “under the influence of drugs and/or narcotics” as opposed to an Employee reporting for duty under the influence?