Understanding New Legislation on Workplace Harassment

When new legislation is implemented, it is crucial for businesses and employees to understand how it will impact each of them right now and influence future practices. At the beginning of this month, John Botha, CEO of Global Business Solutions, led the webinar hosted by the Temporary Employment Services Division (TESD) to unpack the latest placing of harassment in the Employment Equity Amendment Act. The TESD initiated the webinar to drive awareness on the full scope of harassment in the work place, and encourage a proactive approach to supporting the modern labour force. The webinar highlighted the need for employers to take a proactive approach with harassment, be aware of the extended definitions and types of harassment, consider how it applies to race, gender, disability and Lesbian, Gay, Bisexual, Transexual, Queer and others (LGBTQ+) as well as revising the all related company policies.

Businesses should rightfully be spending significant time and energy to ensure compliance with new legislation. It is a priority not only from a legal perspective, but also from a civil one. Botha stressed that individuals can be held criminally liable if they are not alert about avoiding behaviours in the workplace that fall under harassment. This means watching not only what you say and do, but also what you post and share on social platforms.

It comes as no surprise that sexual remarks and inappropriate advances fall under harassment. However, many are unaware that constant criticism, abusive language, humiliation, and ostracising actions towards an individual also constitutes as harassment and has serious consequences, according to the latest legislation. Employers should regard all forms of harassment as unfair discrimination and constituting a barrier to equity and equality in their company. “There is no hierarchy between physical, psychological, emotional and sexual abuse,” emphasises Botha.

In the modern workspace, it is no longer business as usual. Employers must utilise emotional intelligence to support a younger and more diverse labour force. Millennials, born between

1981 and 1996, are currently the largest living generation. The millennial employee will make up 75% of the workforce by 2025 and has different needs compared to previous generations. To keep with the times, business owners need to create a culture that makes their workers feel part of a team, accepted, heard and respected. Ensuring this psychological safety is essential as part of management skills right now and going forward.

This knowledge needs to be implemented into clear action. The onus is on employers to have a solid harassment procedure and fully inform employees of them. It should be unacceptable in any workplace for temporary or permanent employees to be uncertain on how, and to whom, to report workplace sexual harassment to. The procedure should begin with any conduct immediately being brought to the employer’s attention. Next, the complaint is confidentially investigated by consulting relevant parties. Expert advice and counselling should be given, and definite steps should be taken to eliminate any form of harassment. Lastly, complainants are formally or informally informed (depending on the gravity of the incident) and the perpetrator is approached. A serious matter is lodged either internally or external recourse is followed with the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court and Equality Court (PEPUDA). The Temporary Employment Services Division (TESD) continues to ensure compliance and credibility of its members in all areas of legislation for over 28 years. Their latest webinar shows that whether you are a major or minor employer, making sure you have clear channels to report misconduct and have a no-tolerance policy towards harassment is crucial to promote not only a successful business but contributes to bettering our communities.

Media Contact Details: Client Rep.: Christa Smith I christa@associationadministrator. co.za Agency Rep.: Brad Watridge I brad@hotmustard.co.za I Mobile: 074 793 9338 About The TESD

The TESD provides temporary employment service providers with a stakeholder forum to regulate this specialised industry to serve the needs of their clients and to protect the rights of their candidates in a legally compliant environment.

Since 1994, the TESD has and continues to ensure the credibility and compliance of its members who provide their services to a variety of employees and employers centred in the construction industry. The TESD also supports members operating in secondary industries namely agriculture, raw materials, manufacturing, construction, and the service industry. The TESD recognized the need for a platform where temporary employment service providers are given a voice and become part of a credible representative body in the eyes of stakeholders such as employees, clients, contractors, bargaining councils and trade unions.

The TESD strives to improve the image of labour brokering and uphold the labour ethics and laws, thereby increasing member credibility and compliance.

USING DAGGA FOR ANXIETY

resulted in unemployment

By Jan du Toit

In Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, case numbers JS 633/20 and JS926/20, as delivered on 01 June 2022, the Applicant was dismissed for testing positive for cannabis, or dagga. The Applicant claimed that she was discriminated against and that her dismissal was automatically unfair.

Case Summary

The Applicant was employed by the Respondent from 11 April 2007 until she was dismissed on 30 April 2020. At the time of her employment with the Respondent, the Applicant occupied the position of Category Analyst, which is a typical office or desk job. Her position was not safety sensitive in that she was neither required to operate heavy machinery nor drive any of the Respondent’s vehicles. At the time of her dismissal, she had a clean disciplinary record.

The Applicant submitted that she suffered from severe constant migraines and anxiety, which affected her general well-being and caused sleep disorders. She was prescribed medication by her general practitioner for pain and anxiety, which proved to have some adverse side effects on her. In about May 2012, the Applicant was prescribed pharmaceutical drugs that required the daily consumption of about ten pills, including sleeping tablets.

Following the Constitutional Court case of Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC), which decriminalised the use of cannabis in private spaces, the Applicant gradually moved away from consuming pharmaceutical drugs to using cannabis or CBD oil and smoking rolled cannabis as an alternative to achieve the same results. It took the Applicant a period of about three months to reduce her daily consumption from ten pills to four, and she kept titrating her doses until she was completely weaned off the pills so that she could continue using only cannabis. The entire transition period took her between six to twelve months. The Applicant also used cannabis recreationally by smoking rolled cannabis every evening to assist with insomnia and anxiety. Her physical and mental health improved as a result thereof. She testified that smoking cannabis made her feel closer to God, which also assisted her in her quest to resolve internal struggles. These averments remained unchallenged during the trial of the case.

The General Safety Regulation 2A of the Occupational Health and Safety Act, 1993 (OHS), determines that an employer may not allow any person who is or who appears to be under the influence of an intoxicating substance to access the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Whilst the general and practical theory of intoxication can be defined as the negative behaviour and impaired physical effects

caused by the consumption of alcohol, drugs or other such substances, the legal theory, on the other hand, is quite different. Alcohol/drug intoxication is defined legally according to a person’s blood alcohol/substance level, which can only be determined through testing - be it of urine, breathalyser or blood samples. Considering the aforementioned Regulation, the Respondent introduced an Alcohol and Substance Policy and the Applicant was, at all material times, aware of its provisions. In terms of the Respondent’s amended Alcohol and Substance Policy, and in order to gain biometric access to the Respondent’s premises, employees are required to undergo medical tests. On 29 January 2020, the Applicant was subjected to a medical test, which was in the form of a urine test. The test came back positive as the drug cannabis had been detected in the Applicant’s system and as a result, the Applicant was informed, on the same day, that she was unfit to continue to work and was instructed to immediately leave the premises. The Applicant was immediately placed on a 7-day “cleaning-up process”, which entailed that the test would be repeated on a weekly basis until the Applicant is cleared by testing negative. The Applicant’s accumulated annual leave was to be utilised in lieu of the time off while on the “cleaning-up process”.

At the time of undergoing the urine test, the Applicant was not impaired or suspected of being impaired in the performance of her duties, nor was she performing any duties for which the use of cannabis would constitute a risk to her own safety or that of her fellow employees. The Applicant was also not in possession or suspected of being in possession of cannabis whilst at work on the Respondent’s premises.

During the period from 29 January to 28 February 2020, the Applicant was denied access to the Respondent’s premises as her further tests continued to detect cannabis in her system. This was the case because the Applicant continued to consume cannabis for both medicinal and recreational reasons. The Applicant was accordingly charged with breach of the Respondent’s Alcohol and Substance Abuse Policy and on 25 February 2020, a notice to attend a formal disciplinary hearing was issued to her. At the disciplinary enquiry, the Applicant pleaded guilty to testing positive for cannabis. During mitigation, the Applicant indicated that she did not plead guilty to being intoxicated or impaired at work. She also indicated that she was never “stoned” at work and reiterated the importance of her smoking cannabis every evening as well as using CBD oil to reduce her dependency on pharmaceutical medication. Notwithstanding the aforementioned, the Respondent instructed the Applicant to undergo a “cleaning-up process” and that she would continue to be tested every seven days until she tested negative.

The Applicant was accordingly charged with breach of the Respondent’s Alcohol and Substance Abuse Policy and on 25 February 2020, a notice to attend a formal disciplinary hearing was issued to her

The Applicant obtained the services of a law firm to engage the Respondent about its alleged unfair, discriminatory and fundamentally flawed Alcohol and Substance Policy. Following this, the Respondent sent a meeting request to the Applicant to convey the outcome of the disciplinary hearing, which was summary dismissal. The chairperson of the disciplinary enquiry was of the view that a final written warning would not have served any purpose due to the fact that the Applicant unequivocally refused to refrain from using cannabis.

The Applicant approached the Labour Court in terms of section 187(1)(f) of the Labour Relations Act, 1996 (LRA), and section 6(1) of the Employment Equity Act, 1998 (EEA), claiming unfair discrimination and automatic unfair dismissal on arbitrary grounds. The Applicant pinned her case on two legs. Firstly, on section 6 of the EEA and secondly, on section 187(1)(f) of the LRA. Section 6(1) of the EEA deals with the prohibition of unfair discrimination.

According to this section, no person may discriminate directly or indirectly against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth, or on any other arbitrary grounds. In this regard, the issue of the Applicant falls within the ambit of arbitrary grounds. Whilst not all forms of discrimination are unfair, section 11 of the EEA requires an applicant to produce some facts to prove that unfair discrimination has taken place. An applicant is not absolved from presenting and proving its case if and when unfair discrimination is alleged. Similarly, if an applicant is alleging automatic unfair dismissal as a result of the discrimination, which are interdependent, the applicant has the responsibility to also present credible evidence to support its automatic unfair dismissal claim. This means that if such an applicant is able to overcome the hurdle of proving unfair discrimination, then the automatic unfair dismissal case will be afforded a hearing.

The evidence led that the Respondent has an Alcohol and Substance Abuse Policy was not challenged, neither that the Applicant was at all material times aware thereof. In its quest to show that the said policy was applied consistently and did not differentiate between its employees based on whether they used alcohol or other substances, the Respondent led evidence that all employees who test positive for either alcohol or other intoxicating substances are immediately declared unfit for work and denied access to the Respondent’s premises. The unfit employees are then afforded an opportunity to undergo a “cleaning-up process”, be it for hours or days, whereafter they are retested.

There was no evidence presented by the Applicant suggesting that the Respondent treated other employees who had tested positive for a particular substance, such as dagga, differently from how the Applicant was treated.

Unlike alcohol, which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days. This may mean that a zero-tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time. In addition, tests for cannabis do not demonstrate the degree of impairment of the employee’s ability to perform her or his duties. Cannabis may remain detectable in the bloodstream for days after consumption.

consumption, up to weeks for heavy users and up to months for chronic users. Unlike alcohol, one cannot determine the level of impairment based on test results. Proof of impairment is, therefore, not required as with alcohol; it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature. In this regard, the Applicant testified that she is a chronic user, and she will, thus, never test non-negative to the Respondent’s tests.

It was further held that employees are indeed entitled to use cannabis in their own space and for recreational purposes. Similarly, employees are entitled to consume alcohol in their own private space and time. This, however, does not mean that an employee who consumed alcohol the previous night and tested positive the next day would be absolved from wrongdoing. The employer’s policy will be applicable across the board. This argument by the Applicant failed as it is not sustainable. The Applicant raised what she perceived as justifications for the commission of her misconduct as a Constitutional right.

The Court also found the Applicant’s submission that she used cannabis for medicinal reasons not persuasive. She did not indicate this to her employer and waited until she got caught to raise it. There was also no persuasive evidence presented to the Court that the Applicant indeed had a medical condition. It was incumbent upon the Applicant, in appreciating and respecting the Respondent’s policy, to volunteer her medical condition, especially in view of the fact that it was rather obvious that the consumption of cannabis would ultimately and most definitely lead to a positive test and consequently, to contravention of the policy. The Applicant deliberately omitted to do this and only sought to bring it to the attention of her employer in an attempt to justify her contravention of the policy. The Applicant presented no proper medical evidence. As such, her evidence regarding her medical condition and how the use of cannabis could possibly serve to treat it or provide her with relief was unsubstantiated, and in essence, required the Court to accept her word as layperson on such a complex medical issue, or even to speculate.

Whether the Applicant smoked or consumed cannabis after hours was also held to be irrelevant. The Respondent led evidence that, owing to the highly dangerous operations on its premises, it had a zerotolerance approach to working under the influence of alcohol or drugs. The Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies. Although the Applicant herself did not engage in such dangerous activities, the Respondent has a workplace that is fraught with danger. The Applicant tested positive for cannabis and continued to test positive simply because of her perpetuated act of consuming the substance, and she made it fairly clear that she would not refrain from doing so.

The conduct of the Applicant was held to have been pure misconduct and nothing about it had the elements of discrimination and/or automatic unfair dismissal. The Applicant’s claims for both the automatically unfair dismissal and unfair discrimination were unsuccessful.

Jan du Toit is a Director at Labour Guide.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labourrelated matter, you are encouraged to arrange a formal consultation with the author.