Modern Quarrying Q4 2018

BEING STONED – IMPLICATIONS FOR THE INDUSTRY

Being stoned has different meanings for different people! Our industry mines stones, we sell stones and we are in the stone business! However, we are not talking about industry stones; the focus is on the recent judgement on cannabis, some call it weed – others know it as dagga – but if you use it, people refer to you as being stoned! By Nico Pienaar , Director of Aspasa.

THOUGHT LEADERSHIP – SAFETY

B y now, readers of this publication are aware of the High Court ruling regarding the use of cannabis being made legal. Let’s not get the message wrong. The court has only said that the use of cannabis for private use is allowed. Parliament has been given two years to correct the defects in the legislation, in which the court found the Drugs and Drug Trafficking Act, no 140 of 1992 and the Medicines and Related Substance Control Act, no 101 of 1965 to be inconsistent with the Constitution of South Africa. At the end of the day, the court ruling says: “Youmay as a private individual use, possess and cultivate cannabis in private for your personal consumption only.” However, smoking cannabis in public or in the presence of children or non-consenting adults is prohibited. The question that employers are asking, especially readers in this part of the industry, is what do we do, how do we handle this, what about the MHSA and our disciplinary procedure? The Act and the company’s procedures are not the only issues, but also think about incapacity, occupational health, safety, driving of heavy vehicles and vicarious liability within the context of drugs used and abused. Let’s not ask more questions but try and come up with some answers and suggestions. The workplace might be seen as private property and even though the judgment makes it clear that “in private” is for cultivating cannabis. So companies with large pieces of land should be aware that individuals cannot be allowed to cultivate cannabis on “company” property. Make this clear in your disciplinary procedure and a memo to all employees. It is the responsibility of the employer to protect all employees – remember there are employees who do not use substances. Can an employee bring his cannabis to the workplace? Companies must ensure that communications in this regard be shared with employees and the disciplinary rule be specific. This is similar as to having alcohol on the premises. To those operations that have refridgerators stocked with “beers”, note that the rules must be practised consistently. There is a simple rule in labour law; be consistent

and fair. Also note that the disciplinary procedure and the MHSA or OHSA apply to all employees, even representatives, contractors and managers who go out to lunch and return to work under the influence. So, now you have employees that are found in possession of cannabis at work. How do you go about it? Always first investigate the situation, collect witnesses, photos, statements, but the most important aspect is, was the employee aware of this rule and how the company would deal with these transgressions? Make sure the Disciplinary Code Procedure is very clear. No smoking at work is allowed. Please note that if a “blind” eye is turned on this and in an event that an operator of heavy machinery goes on to cause an accident that results in a fatality, if it is found that the cause is due to substance abuse, then the employer who let the transgression happen under his/her watch will also be liable. Now that we can be “stoned”, what should employers do? Most companies, especially small work areas, can quickly see that an employee is starting to break the rules (misconduct), or is failing to meet performance standards (incapacity). Again, we look at the disciplinary procedure, past practice and actual cases handled in the company. Cannabis use is not obvious, and is not easily detectable. Employers need tomake it clear to employees that as the operation falls under theMHSA, an employeemay not operate machines under the influence of an intoxicating substance. If caught, they couldbe charged criminally. About the author Nico has been the Director of ASPASA for 20 years. He completed a masters degree in Labour Law and Industrial Relations. He also qualified as a mediator. In his career he worked for companies, employer federations (BIFSA) and was a general secretary of a trade union in the “old South Africa”. He has gained a wide range of experience in health & safety, environmental, technical, HR and skills development and many f the services that Aspasa offers.

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MODERN QUARRYING QUARTER 4 - 2018