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August 30, 2023

South Africa: Labor Court Issues Decision on Religious and Cultural Discrimination Claim Based on Cannabis Use

Hilary Mofsowitz

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.

The company’s defense

The company denied that its policies were discriminatory, as they applied to any employee who tested above the prescribed limits. The company argued that its policies did not discriminate against marijuana users and that the grievant was free to exercise his legal right to use marijuana as long as he tested below the prescribed limit, which corresponded with reasonable levels of safety. His right to practice his religion or culture traditions cannot trump the right of other employees to a safe working environment or the company’s legal duty to maintain a safe environment.

Findings of the court

The court accepted that the company policy did not differentiate between employees. Whilst the impact of the policy may have indirectly discriminated against the constitutionally protected rights of marijuana users who imbibe it for cultural and religious purposes, this did not amount to unfair discrimination. The court concluded that the company’s testing policy was reasonable and that testing below the limits in the policy was an inherent requirement of the job, given the specific working environment of the company.


The Constitution of South Africa, specifically probits discrimination directly or indirectly on any listed or arbitrary grounds (the Constitution contains a detailed list of possible types of discrimination). Faced with discrimination claims, employers should be prepared to defend the reasonableness of their policies and be able to show that their policies are linked to the inherent requirements of respective jobs. The company in this case, defended the cut-off limits as being in line with international norms and the court accepted that they were reasonable. The court recognized the distinction between an employee testing positive for marijuana versus being under the influence to the extent that he/she would be impaired in the performance of duties.

Hilary Mofsowitz

Mediator-Arbitrator- Fact finder- Hearing Officer New York, New York, USA

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