By Guest Writer Dyonne Modlin for Nikki Viljoen of Viljoen Consulting (Pty) Ltd
Please note that this applies to South African Labour and Best Practice Requirements
Dyonne Modlin is the Founder and Owner of Lateral Labour and she is both a colleague and a good friend. I have known Dyonne for many years now and I have never met a more clued up person in terms of HR. In fact, most of what I teach and write about, I have learnt from her. So when she sent this out the other day, I immediately requested permission to send it out as one of my daily (or rather weekly HR) blogs. Enjoy the different spin on what is usually a very serious subject. Thank you Dyonne for graciously allowing me to reproduce your mail here.
Dear Clients, Friends and Colleagues,
I haven’t sent out one of these for many years, but have recently experienced such a thought-provoking melting pot of cases that I believe I should make the effort to update (your recipe books and share some of the recent ingredients that have come across my plate. I have organized these into dishes and recipes for those amongst you who have no appetite for reams of hard core law reading (sincere apologies to my colleagues in this group , I have listed the relevant citations at the bottom for your future reading pleasure)
DISH 1 – Smoke it up
The recent Prince judgement effectively legalized the personal use of cannabis and the Constitutional Court gave Parliament a 2 year period to align other legislature with this ruling. This controversial dish has many employers wandering what to do if their employees test positive for cannabis when the law no longer considers this ingredient to be illegal and as such, positive drug tests no longer result in workplace charges for the use of illegal substances. It is common sense for even the basic cook that the work environment does not amount to a personal one, however, the question that begs asking is whether it is still “safe” to dismiss an employee for the presence of cannabis in his or her system.
There are a number of ways to test for cannabis including urine, hair and blood analysis. Traces of cannabis can be detected for up to 10 days to six months after use and it follows that an employee that legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday, even though no longer under the influence, and unlikely to be impaired.
The short answer is that yes, employers can still safely dismiss for positive cannabis results on the basis that the employee willfully disregarded the Company safety rules, as long as they follow the recipe properly:
Step 1: Have a substance abuse policy in place with a zero tolerance clause (it also wouldn’t hurt to incorporate this clause into your contracts) that clearly spells out the dismissible nature of a positive result.
Step 2: Mix in consent for testing and consistent application of testing (non-discrimination).
Step 3: Swiftly add a disciplinary code that stipulates the severity of the offence and boil slowly with safety procedures that outline the same.
Step 4: Apply the usual procedural and substantive ingredients to the disciplinary hearing
NB: Don’t mix recipes – If the employee admits to a substance abuse problem, this is an incapacity recipe and is not the same as misconduct (a counselling recipe is required for incapacity)
DISH 2 – Spice it up, or don’t?
Most employers and many HR/IR practitioners have flopped the recipe on the correct charges on at least one (probably a costly one) occasion in the past, which is the reason that a recent Labour Court ruling (Xstrata and NUM) made for an exciting dish. In a review matter, the LC decided in summary that the arbitration award of a commissioner who based his decision on the fairness of the respondents’ dismissal on their charges and not on the reasons for their dismissal, leading the commissioner to reach an unreasonable decision that may be reviewed and set aside. This is good news for employers and HR practitioners because the back to basics approach allows for less legalistic allegations and hearings.
Step 1: Make sure your disciplinary code is simple and user friendly so that the Line Manager seeking the correct charge does not need a degree in cooking (or rocket) science
Step 2: Mix with a dose of Line Management that are adequately trained in the initiating and chairing of inquiries or ensure all charged are vetted by properly trained IR Practitioners.
Step 3: The simplest recipes always turn out best, so keep the charges to the facts and leave the fancy word icing off this cake.
As a final cooking tip – If at first you don’t succeed, don’t try again…..
The Labour Court again confirmed (Opperman) what your HR Practitioner has been telling you for years now. The Chairperson of an Appeal Process cannot impose a harsher sanction than the original chairperson. In fact, if your Disciplinary Code still has an appeal procedure, consider removing it or applying special provisions like…only applicable where a hearing occurred in the absence of the employee.
Mthembu and others / NCT Durban Wood Chips  4 BALR 369 CCMA
Opperman v CCMA and Others (C530/2014)  ZALCCT 29; (2017) 38 ILJ 242 (LC) (17 August 2016)
Xstrata South Africa (Proprietary) Limited – Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011)  ZALCJHB
Looking forward to sharing further exciting developments and, as usual, don’t hesitate to contact me if you have any questions (or would like to learn how to cook up different dishes?)
Dyonne can be contacted on 083 327 3965 or her email address firstname.lastname@example.org.