Dismissal of Cape Town Law Enforcement officer goes up in smoke

A City law enforcement officer looks forward to returning to duty next month after he was unfairly dismissed when his random workplace drug test tested positive for THC (cannabis).

The learner Law Enforcement Officer in the City’s Law Enforcement Department, who pleaded guilty to the misconduct, will return to duty on March 2 after the Labour Court, in agreement with the arbitrator's decision, ruled for his reinstatement and back pay of R553,135.24 be paid.

Regional secretary for the South African Municipal Workers Union (Samwu), Hlalanathi Gagayi, said they were happy with the outcome and that the Labour Court supported their stance that the officer had been unfairly dismissed. 

Gagayi said the officer had been unemployed since his 2023 dismissal and is looking forward to being gainfully employed again. 

“He is a young person who is committed to working in the safety and security sector and improving the safety in our city. When this happened, it almost broke that dream, but now that the judgment has come in this way, it means his dream is alive as a young man to contribute to the safety of our metro,” said Gagayi.

Following a disciplinary procedure - where the officer was found guilty of misconduct and subsequently dismissed on October 31, 2023 - the case was taken on review by Samwu to the South African Local Government Bargaining Council (SALGBC).

The arbitrator found that his dismissal was unfair, which gave rise to the City’s opposed review application to the Labour Court.

City spokesperson Luthando Tyhalibongo said they are still studying the judgment and had no further comment at this point in time.

According to details from the disciplinary hearing, on February 3, 2023, the officer was subjected to a random workplace drug test, which returned positive for THC.

He was charged with misconduct for testing positive while on duty, which breached the City's Substance Abuse System and Procedure. The policy was formulated, where a zero-tolerance approach is taken for law enforcement officers found guilty of testing positive for being under the influence of drugs and alcohol, and prohibits employees from being under the influence of intoxicating substances while on duty.

Gagayi further said: “We are just concerned that the City wants to do things outside of what is expected because this thing of saying zero tolerance on some allegations is not fair. We believe each case should be dealt with on its own merits. Not to say that if a person is charged with this, there is zero tolerance. We hope the City can learn from this judgment.”

The Labour Court's acting judge ruled that nothing in the pleadings or arguments suggested that the arbitrator engaged in improper conduct or acted with any malfeasance or dishonesty.

Acting Judge C May said: “There was no material malfunctioning. The award is in the circumstances unassailable. The arbitrator’s outcome therefore is not one a reasonable decision-maker could not reach…

“From the evidence before the arbitrator, it was common cause that the employee at the time was not required to perform any tasks which had any implication of risk, he was not required to wear a firearm at the time and also not required to drive a vehicle.

“The commissioner also considered that using cannabis (dagga) is not unlawful. Using cannabis could, therefore, not be in conflict with his duties as a law enforcement officer.

“The arbitrator ultimately held that dismissal as a first offence was too harsh under the circumstances, accordingly, found that the dismissal was substantively unfair.” 

Citing case law, the court further held that: “...Cannabis stays in the blood system for longer than is the case with alcohol. This underscores the point that a mere positive test for cannabis does not address the sobriety of the user or indicate whether they are impaired from carrying out their duties.”

The court ruled that the City pay the officer his full back pay for the period October 31, 2023, to March 2, 2026, by March 31, 2026.