In June 2023, the Labor Court issued a decision in a case where the grievant alleged discrimination on the basis of his culture/religion. The grievant was placed on three months sick and annual leave, after testing positive for marijuana at 52ng/ml (nanograms per ml).
Facts of the case
The grievant is a telecommunications technician with the Petroleum Oil and Gas Corporation of South Africa with fourteen years’ service and a clean disciplinary record. Due to the company’s very strict safety measures, employees are breathalysed daily and there is random drug testing policy. The company’s policy prescribes the cut-off level for marijuana as 50ng/ml. The grievant advised the company that he was called to “embark on a traditional healer program” and he was transferred to a different location in order to accommodate this request. During his refinery medical assessment, he tested positive, as described above. He was advised that he would only be permitted to return to work, once he reached the prescribed cut-off limit.
The grievant’ s claim
The grievant alleged that he was unfairly discriminated against on the basis of religion and/or culture and he sought compensation and damages for the impairment of his dignity, medical expenses and emotional distress. He argued that he was called to be a traditional healer, which could only be refused at great peril to himself. He argued that the training involved the use of marijuana. He supplied a medical certificate from a traditional healer. He argued that testing above the prescribed limit did not affect his ability to work, and whilst he accepted that there had to be some cut-off limit to safeguard safety, he was only 2ng/ml over the standard.