QUESTION 1

The employee suffered from constant migraines and anxiety, which damaged the employee’s health and affected the employee’s sleep. As cannabis was decriminalized for private use (Minister of Justice and Constitutional Development v Prince 2018 6 SA 393 (CC)), the employee switched from medicinal tablets to cannabis oil and rolled cannabis to attain the same outcomes. The employee used cannabis recreationally for insomnia and anxiety. She became healthier, happier, and more spiritual. The employee, who otherwise had a clean disciplinary record, knew the employer’s alcohol and substance policy barred cannabis smoking. Medical tests showed the employee used cannabis. The employer ordered the employee to be cannabis-free within seven days and tested weekly until she tested negative. She was instructed to take unpaid leave if her yearly leave ran out. She violated the employer’s alcohol and substance policy by continuing to consume cannabis. She didn’t use heavy machinery or drive the employer’s cars and it was common cause that her cannabis use was not a safety concern. After failing to comply, the employee was dismissed.
Critically discuss, with reference to recent case law and applicable legislative provisions, if the dismissal of the employee was substantively fair.

[25 MARKS]

QUESTION 2

Dr McGregor was employed as Head of Anaesthesiology at George Hospital, a public hospital which falls under the Department of Health, Western Cape. Ms B a newly qualified medical practitioner, was completing an internship under Dr McGregor’s supervision and was thirty years his junior. Dr McGregor, while on duty at an outreach clinic with the victim, made unwelcome suggestions of a sexual nature when he dared her to remove her clothes and swim naked. The second incident arose from the same outreach excursion, when he suggested she have an affair with him. The third incident related to an incident whereby, upon their return to George Hospital, Dr McGregor inappropriately pressed himself against the victim whilst demonstrating how to carry out a procedure. The final incident occurred when Dr McGregor made unwelcome sexual advances and inappropriately touched the victim’s leg whilst they were driving together. It is significant tonote that all of the incidents took place whilst Dr McGregor was on duty, acting within his professional, and senior, capacity.
Critically analyse the legal position of Ms B and advise her of any possible remedies that she may have under all applicable labour legislation. Please also advise, the employer, the Department of Health, of any remedies that they have against Dr McGregor. [25]

Answers to Above Questions on Labour Law

Answer 1: There are various factors that need to be considered in order to determine whether the dismissal of an employee is considered as fair or not. These include the health condition of the employees, the impact of Cannabis used on her job performance and the policies set by the employer. In the given case scenario, it is evaluated that there is significant emphasis placed on the importance of employers considering accommodation for employees.

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