MRL3702 Unique number: 636766 Semester 2: Assignment 1
Due date: 15 May 2021 Student number: 55612792 Ashleigh Hala
Question 1: Legal opinion: Mthembu and others v NCT Durban Wood Chips
[2019] 4 BALR 369 (CCMA); (2019) 28 CCMA 8.37.3
Summary of the facts of the case
The three employees were employed by the NCT Durban Wood Chips where they
do business in the wood and chip industry. Their jobs entail the use of large,
dangerous machinery and vehicles that move throughout the premises during the
day. The employees occupied jobs that posed elements of danger, thus there
were rules and policies in place, with one of them being a zero-tolerance approach
towards substance abuse by employees to protect both the employees and the
employer. This policy was signed by all employees.
In April 2017, the employer conducted a drug test after one employee was
suspected of being under the influence and these three applicants tested positive
for cannabis. The urine samples from the applicants were sent to a laboratory and
the positive result was confirmed, resulting in the applicants being called to a
disciplinary hearing whereby they admitted to having smoked cannabis. However,
it was argued that this was done outside of the workplace. The applicants were
found guilty of being under the influence of an intoxicating substance whilst on
duty and were dismissed. The applicants decided to argue the fairness of their
dismissal and referred the matter to the CCMA for arbitration.
In order to determine fairness, the arbitrator considered the policies put in place at
the workplace and factors such as, whether these policies were contravened, are
the rules and policies reasonable, was the employee aware of these policies and
whether the dismissal was an appropriate consequence for contravening the
policies. The Arbitrator found that due to the dangerous work environment, the
‘zero-tolerance’ policy that prohibits substance usage at work is reasonable. In
addition, it was found that employees were aware of this policy. The new
Constitutional Court ruling on the decriminalisation of private use of cannabis was
considered, however the Arbitrator held that the effects of cannabis act in a similar
way to alcohol, posing a risk to employees who are under its influence, thus
entitling the employer to take disciplinary action against an employee in this case.
Issue in dispute
(1) It must be decided whether the dismissal of the applicants is substantively fair.
Due date: 15 May 2021 Student number: 55612792 Ashleigh Hala
Question 1: Legal opinion: Mthembu and others v NCT Durban Wood Chips
[2019] 4 BALR 369 (CCMA); (2019) 28 CCMA 8.37.3
Summary of the facts of the case
The three employees were employed by the NCT Durban Wood Chips where they
do business in the wood and chip industry. Their jobs entail the use of large,
dangerous machinery and vehicles that move throughout the premises during the
day. The employees occupied jobs that posed elements of danger, thus there
were rules and policies in place, with one of them being a zero-tolerance approach
towards substance abuse by employees to protect both the employees and the
employer. This policy was signed by all employees.
In April 2017, the employer conducted a drug test after one employee was
suspected of being under the influence and these three applicants tested positive
for cannabis. The urine samples from the applicants were sent to a laboratory and
the positive result was confirmed, resulting in the applicants being called to a
disciplinary hearing whereby they admitted to having smoked cannabis. However,
it was argued that this was done outside of the workplace. The applicants were
found guilty of being under the influence of an intoxicating substance whilst on
duty and were dismissed. The applicants decided to argue the fairness of their
dismissal and referred the matter to the CCMA for arbitration.
In order to determine fairness, the arbitrator considered the policies put in place at
the workplace and factors such as, whether these policies were contravened, are
the rules and policies reasonable, was the employee aware of these policies and
whether the dismissal was an appropriate consequence for contravening the
policies. The Arbitrator found that due to the dangerous work environment, the
‘zero-tolerance’ policy that prohibits substance usage at work is reasonable. In
addition, it was found that employees were aware of this policy. The new
Constitutional Court ruling on the decriminalisation of private use of cannabis was
considered, however the Arbitrator held that the effects of cannabis act in a similar
way to alcohol, posing a risk to employees who are under its influence, thus
entitling the employer to take disciplinary action against an employee in this case.
Issue in dispute
(1) It must be decided whether the dismissal of the applicants is substantively fair.
