Category Archives: Labour Law

Anti Drug Alliance SA responds to Employee Dagga Rights – The Truth

We ask those who use cannabis to be realistic and understand that the general public are very misinformed and dubious about cannabis.

Anti-Drug-Aliance-Responds-To-Employee-Dagga-Rights-Article_img_0

Employee Dagga Rights – The Truth

This article is reference to an article written on the Dagga Magazine website (
http://daggamagazine.com/2014/11/02/employee-dagga-rights/

).

The Anti Drug Alliance of South Africa has often been quoted in the mainstream media as being advocates for the legalisation of cannabis in South Africa. With this being said, we believe that the proposed Medical Innovation Bill is a fantastic way to begin the process.

We believe that cannabis has huge potential medicinally, and commend the people that are advocating the legalisation of the plant.

There is literally millions of pages of facts surrounding the benefits of cannabis use – some scientifically proven and studied, others unstudied and unproven (as yet). However, as the Anti Drug Alliance of South Africa, we believe that we are obligated to ensure that the public are made aware of the real facts, and the real benefits. This is a fight that will always call morality and religious and cultural beliefs into question, and so, in order to make sure that the public gets the raw truth, we have to stick to the science.

In South Africa, as we have mentioned, legalisation (for medicinal use) is being debated. This is a big step for our traditionally conservative country, and there are many that are adding their voices to the call.

We ask those who use cannabis to be realistic and understand that the general public are very misinformed and dubious about cannabis.

We have to speak with one voice and stick to the facts.

A recent article on the Dagga magazine website, (
http://daggamagazine.com/2014/11/02/employee-dagga-rights/

), makes certain claims regarding the use of dagga. We would like to say that although we commend and agree with the spirit of the article, we would like to correct the writer as he has made some incorrect statements which may lead to confusion and ultimately incorrect beliefs which contradict South African Law.

The article states that (verbatim) “Modern drug tests can only determine whether you are a user of dagga.”, and “Currently there is no dagga test that can determine if a user is under the influence of dagga.”

The writer is correct regarding the first statement. Most drug tests today indicate the presence of THC or cannabis metabolites in the person’s blood stream, urine or saliva.

The second statement is true as well, however, we say this on the side of caution. Cannabis is metabolised through our system at different rates. Whereas one person may ingest cannabis (at irregular intervals) and have completely metabolised it within 5 or 6 days, another could take 10 or 12 days.

Regular users can (after ceasing use) look at positive test results from 6 weeks up to 6 months, depending on the person’s weight, gender, how long they used for, how much they used and a wide variety of other factors.

The writer states:“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.”

Most corporate companies have Substance Abuse Policies in place which speak about drug and alcohol use and abuse. Many forward-thinking companies have even included other forms of addiction such as gambling, pornography and even OTC and prescription medication abuse.

We agree that you should ensure that before being tested, that your company has a policy in place which can enforce testing.

As a whole we have no real gripes with the article in question, as the writer has researched well and explained user’s rights very well. The conclusion of the article has several bullet points which we would like to discuss.

We will note these bullet points and highlight those which are incorrect.

  1. While dagga is illegal don’t smoke at work.
  2. Don’t keep dagga on you, in your vehicle or at work .
  3. Get legal representation.
  4. Inform your representative of the scientific facts surrounding dagga. It is highly likely that he/she doesn’t know much except for propaganja.
  5. Remember: Tobacco, alcohol and coffee are also drugs.
  6. You are not a drug addict for testing positive for dagga use.
  7. You are not a criminal for testing positive for dagga use.
  8. You are not proven intoxicated or under the influence for testing positive for dagga use.
  9. You have not broken any laws by testing positive for dagga use.
  10. 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.
  11. 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.

Point 1. We agree.

Point 2. We agree.

Point 3. We agree.

Point 4. We agree.

Point 5. We agree.

Point 6. We agree, although, like any drug – legal ones included – we would like to state that addiction can happen to anyone at any time. Abusing any substance is easy, and if your work or personal life is affected in any way whatsoever because of your use (or abuse) of a substance, we urge you to seek help.

Point 7. We DISAGREE. Act 140 of 1992 clearly speaks about this. In Chapter II (Illegal Acts), section 4 states (verbatim):

“4. Use and possession of drugs.—No person shall use or have in his possession—

(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,”

We would like to highlight the following sentence: “…No person shall USE or have in his possession…

According to South African law, use of the substance is a criminal offence as well.

So, if we interpret the law correctly, if the substance is in your system, it means that your are legally in possession of it AND have used it as well, which is a criminal offence.

This means that technically, should you test positive for a drug in your system, your employer is actually compelled by law to report this to the Police, otherwise they may be complicit in a criminal offence.

Point 8. We agree.

Point 9. We DISAGREE. We have clearly shown above that by having dagga in your system, you are breaking the law.

Point 10. We neither agree nor disagree. This is difficult, however, many corporate companies’ substance abuse policies state that a positive result for alcohol or drugs is seen as misconduct, and can be an offence which incurs instant dismissal.

Point 11. We neither agree nor disagree. We cannot argue that dagga is (currently) illegal. We have shown that dagga use and possession is illegal, and by using it, you are by law then in possession of it in your system. Hence, as stated in the paragraph above, many corporate companies’ substance abuse policies state that a positive result for alcohol or drugs is seen as misconduct, and can be an offence which incurs instant dismissal.

Conclusion by The Anti Drug Alliance of South Africa

We would like to commend the writer of the article published at http://daggamagazine.com/2014/11/02/employee-dagga-rights/ for a well written article, however, as activists in the legalisation of cannabis in South Africa, we would like state that we must at all times ensure that we know the law and our rights.

By giving incorrect information, we give credence to our opponents who state we ourselves use propaganda to disseminate information.

We ask all of our friends and colleagues in the cannabis legalisation arena to make sure we stick to the facts only, and also to make sure that we do not interpret the law to suit our agenda. Remember, we are already in the spotlight for our beliefs, and if we become radical and make incorrect assumptions and statements, it strengthens our opponents.

Remember, even if we disagree with a law, it does not give us the right to break it, however, we have the constitutional right to challenge it.

By giving incorrect information, we simply flush our credibility down the toilet and allow those who oppose use to highlight this and destroy our chances at changing the law for the better.

This document was prepared by Quintin van Kerken, Chief Executive Officer or the Anti Drug Alliance of South Africa.

Please feel free to contact the writer at
info@antidrugalliance.com

or call on 081 577 7715.

Employee ‘Dagga Rights’ – What You Need To Know

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.

marijuana in the workplace

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.

medical-marijuana-privacy

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. 

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