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Employee ‘Dagga Rights’ – What You Need To Know

19 January 2015, 15:31

Currently there is no dagga test that can determine if a user is under the influence of dagga.

Modern drug tests for dagga can only determine whether you are a user of dagga. There is no reliable scientific way to prove intoxication or determine that you are under the influence of dagga while performing your duties as employee.

Do not consent to drug testing unless your employment contract specifically covers drug testing or your company has a comprehensive Occupational Health policy in place.

If you are a daggafarian, do not despair, all is not lost.

As a daggafarian, the most likely scenario you will find yourself in is a disciplinary hearing. They will have to determine if you are addicted or is it a case of misconduct. If they find you are “addicted”, they will have to offer rehabilitation support and if your rehabilitation is a success your case will be dismissed and you will remain employed if however they find you are not an addict the hearing will continue on the basis of misconduct, especially so when dagga is found on you.

Make sure that you seek legal representation for when the matter is brought before the CCMA arbitrator.

Your best counter argument

You must argue that the drug test does not prove intoxication. The test implicating you does not prove you where under the influence of dagga while you where performing your duties as employee.

Scientific Fact

There is no known scientific method for testing dagga intoxication in a similar manner to alcohol.

THC metabolites, which most tests look for, remain in the body long after you have smoked dagga.

You may have smoked your last bong on Saturday night and depending on how frequently you toke, you could still test positive months later.

Conclusion

  • While dagga is illegal don’t smoke at work.
  • Don’t keep dagga on you, in your vehicle or at work .
  • Get legal representation.
  • Inform your representative of the scientific facts surrounding dagga. It is highly likely that he/she doesn’t know much except for propaganja.
  • Remember: Tobacco, alcohol and coffee are also drugs.
  • You are not a drug addict for testing positive for dagga use.
  • You are not a criminal for testing positive for dagga use.
  • You are not proven intoxicated or under the influence for testing positive for dagga use.
  • You have not broken any laws by testing positive for dagga use.
  • You are not guilty of misconduct for testing positive for dagga use. Especially so if you only smoke dagga on your own time and in the privacy of your own home.
  • Misconduct, in regard to testing positive for dagga, can only be proven where the company is also implicated. Eg. You are found to be in possession of dagga while driving a company car or you smoke dagga in public while wearing company uniform.

The arbitrator’s decision is final and money talks. Please see sources more information.

What you need to know about drug testing in the workplace

The South African Occupational Health and Safety Act No. 85 of 1993 is the national legislation that protects employers, employees, and all business stakeholders from injury and death, and also covers various aspects of occupational health to ensure that the workforce and those who supplement and rely on it are protected at work. Every business in every industry can benefit from observing the law in this regard, especially where those businesses are affected by the overt and subtle dangers of drugs.

Employees and the OHS Act

Employees who use and abuse drugs during working hours or who arrive at work under the influence of drugs are putting themselves and their colleagues in danger. The OHS Act states emphatically that employees will take reasonable care for their own as well as their colleagues’ health and safety – as well as the health and safety of any other people who are affected by his actions or omissions. Someone under the influence of drugs can cause huge problems in this regard, especially by the irresponsible nature of drug abuse. Their absenteeism, errors on the job, as well as possible accidents not only cost time and money in terms of equipment and productivity, but can also endanger the lives of others.

Employer responsibilities

As an employer, your duties include preventing employees from coming to and staying at work if you can clearly deduce that they are under the influence of drugs (or alcohol). As part of this prevention plan, you should include a policy on drug and alcohol testing, which every employee should be made aware of when they sign their employment contract. You have the right to conduct random or motivated drug and alcohol tests to not only protect your business, but your employees too. However, it’s important that you don’t infringe on employee rights in the process, which include:

1. Employee consent

Before you perform drug and alcohol tests, you need to gain consent from your employees. This can be gained if you have a full, contractual Occupational Health and Safety Policy in place, which is set out in the employment contract. The employee’s signature on their employment contract subsumes their consent for drug testing.

2. No undue discrimination

It’s important that you don’t single out specific employees for drug testing in a discriminatory way, but that random testing is indeed random. If drug testing is justified by the nature of an employee’s job (i.e.: heavy machinery operation that risks their and others’ lives), then gain their consent prior to testing.

3. Follow due procedure

If you need to search an employee for drug possession, it’s important to follow due procedure: respect the employee’s right to privacy; only perform same-sex searches (men search men, women search women); and have an unbiased witness present. If an employee refuses a drug test when you have adequate grounds to believe they are/were under the influence while engaged in their employment duties, they may face disciplinary action. However, be 100% sure that you are following due procedure according to the OHS Act

Disclaimer: The opinions expressed in this article should not be taken as legal advice. We recommend that you seek legal council from a CCMA representative or an attorney dealing in labour law. 

Disclaimer: All articles and letters published on MyNews24 have been independently written by members of News24's community. The views of users published on News24 are therefore their own and do not necessarily represent the views of News24. News24 editors also reserve the right to edit or delete any and all comments received.

 

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