Judgment is reserved in the case of Bernadette Enever vs Barloworld Equipment South Africa.

The long-awaited hearing of Burny Enever’s case in the Labour Court of Appeal in Johannesburg was an important day. Not only for the incredible Burny, but also for Fields of Green for ALL’s Strategic Litigation project. A day in court is always a milestone, bringing us back to the big picture, getting us to reflect on how far we have come, and how far we still have to go.

Background

The issue of Cannabis in the workplace is crucial to our Human Rights to Dignity and Freedom from Discrimination. In South Africa, the vast majority of workers fired for testing positive for Cannabis in their urine are usually among the lowest paid in mining and manufacturing industries. This case is therefore crucial to help set a legal precedent to protect worker rights, regardless of industry. Unjustly firing workers based on urine tests that do NOT show current impairment has an immediate effect on the poorest in our country – those whose needs our government is purporting to champion ahead of the elections next year.

While the issues surrounding rural farmers were placed at centre stage (with good reason) at the Cannabis Phakisa Action Lab in June this year, little was said of the injustices that continue to be meted out in HR Departments across the country against employees exercising their Constitutional Rights. We are not standing by idly. Fields of Green for ALL is in contact with COSATU. Additionally, we are working towards raising the profile of this issue through their seat at the National Cannabis Master Plan Steering Committee table.

Both Burny and Barloworld Equipment submitted papers for the appeal at the end of 2022. We have spent the year waiting for a court date. Judgment was reserved at the end of the 90-minute hearing; we do not expect judgment to be handed down before the first quarter of 2024.

Case to date: https://www.fieldsofgreenforall.org.za/conflict-between-cannabis-and-labour-law-in-south-africa/

The Day’s Proceedings

When we arrived in the Labour Court of Appeal, we were pleasantly surprised to see a most esteemed bench presiding over the proceedings.

Judge Dunstan Mlombo – Judge President of the Gauteng division of the High Court (Johannesburg and Pretoria)

Judge Basheer Waglay – Judge President of the Labour Court and Labour Court of Appeal in Johannesburg

Judge Dennis Davis – Judge of the High Court and Supreme Court of Appeal, and Presiding Judge in Minister of Justice and Constitutional Development vs Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others vs Rubin; National Director of Public Prosecutions and Others vs Acton 2018(10) BCLR 1220 (CC)

Proceedings began with counsel by Advocate Malcolm Lennox for the Appellant Burny Enever presenting Heads of Argument. The main points of Burny’s argument are below. However, there were numerous questions from the judges regarding details that were frustrating to listen to. At Fields of Green for ALL, we are very much aware that the stigma surrounding Cannabis seeps into every corner of our lives and institutions. We have battled long and hard to have the evidence heard and here we were, sitting before this esteemed bench of learned men, listening to questions about the actual medical evidence that Cannabis stays in the body for weeks.

Question: “Is your case that I can partake in alcohol and, tested the next morning, reflect nothing, but with Cannabis it is different”.

Reply: “Yes, your honour.”

We were reminded by one of our lawyers of Justice Cameron’s remark in the Constitutional Court in 2018: “Of course we all know that Alcohol is more harmful than Cannabis”.

Why were we sitting through all these “common cause” issues again? Why is it not perfectly clear that Burny was NOT “intoxicated” at work?

The short answer: STIGMA.

Summary of main points of Burny’s Heads of Argument:

1. The Appellant, Ms Enever, was dismissed for testing positive for Cannabis.
2. It was Common Cause (agreed between parties before the original Labour Court hearing) that she was not impaired in her functions at the time of her testing positive for Cannabis, or at all. ** see below
3. It was not disputed that she never used Cannabis at work.
4. Ms Enever used it in the evening at home, as is her right to do so.
5. The difference between alcohol and Cannabis is that whilst alcohol dissipates in the bloodstream, Cannabis remains for weeks.
6. The respondent, BWE, claimed to have a zero-tolerance policy whilst the evidence demonstrated that the zero-tolerance policy existed in a previous disciplinary code but was not transferred to the new code.
7. Ms Enever also used Cannabis products for medical reasons. She in addition viewed it as part of her spirituality.
8. All of this was disclosed by Ms Enever in the disciplinary hearing, and yet she was dismissed nonetheless.

Each of the points above attracted attention from the bench, but in a way that seemed to dispute undisputed facts. This is why we say above that the stigma surrounding Cannabis is alive and well. Stigma and “Moral Judgment” drive these crucial issues to have to be debated and proven, over and over again.

Advocate Lennox delivered closing remarks, which spoke to this exact issue. He made it quite clear to the bench that underlying “moral issues” continue to plague our Cannabis community, directly undermining our Constitutional Right to use Cannabis in private.

Our thanks go to Pierre van der Merwe, instructing attorney from Schindlers Attorneys, and his assistant candidate attorney, Juliette Vermeulen.

We now sit and wait to hear the outcome, hopefully within the first quarter of 2024. Hopefully we will set a legal precedent whereby good people like Burny will no longer need to disobey bad laws only to face workplace discrimination based in “moral judgement”.