Home

 

Smoke signals for employers

By Mohsina Chenia, Executive Consultant and Jaden Cramer, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr

 

On 9 May 2018, the draft Control of Tobacco Products and Electronic Delivery Systems Bill was published for public comment.

 

The Bill aims to address the changes that technology has brought on the industry. With particular reference to vapes, e-cigarettes and other kinds of electronic nicotine delivery systems. 

 

Not only are technological changes at the heart of this Bill but the ever-increasing need to safe guard the health and well-being of the general public. Employers have been placed in an onerous position under the proposed Bill and face fines and even imprisonment where they are deemed to fall short of their obligations. 

 

What do employers need to know? 

There are two definitions that are of importance:

 

Firstly, the definition of “smoke” has been expanded to mean “inhale, exhale, hold or- (a) otherwise have control over an ignited tobacco product or a heated but not ignited tobacco product that produces an emission of any sort; or (b) operate or otherwise have control over an electronic delivery system that produces an emission of any sort.”

 

Secondly, “workplace” means “any place in or on which one or more persons are employed and perform their work, whether for compensation or voluntary, and includes - (a) any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area used during or incidental to the course of employment or work: (b) any vehicle which is available for use for business or commercial purposes: and (c) any vehicle registered to the government.”

 

The Act goes further in that s2(1) makes reference to an enclosed workplace. The definition of enclosed space includes an area that is open or closed and an area that has a roof or not. For most of us, this would mean a company bar or even where the canteen area extends onto a balcony. Whilst this might have been used as a smoking area before, it will not qualify now. Caution should be raised to the entrances to buildings, the undercover parking areas and the nooks or crannies frequented by smokers presently.

 

Section 2(3) places responsibility at the feet of the owner of or person in control of a public place or workplace to designate the whole or part of any outdoor space as an area where smoking is prohibited. And the employer bears the duty to ensure no person smokes in that area. Furthermore, employers are required to adhere to the public announcements and signage prescribed by the Bill. 

 

To any employer whose attention has not already been ignited, we lastly draw your attention to s2(6) which speaks specifically to employers. This section states that the employer must ensure that: 

  • Employees may object to smoking in the workplace in contravention of this Act, without retaliation of any kind. 

  • Employees who do not want to be exposed to tobacco smoke at the workplace, are not so exposed. 

  • It is not a condition of employment, expressly or implied that any employee is required to work in any portion of the workplace where smoking is permitted by law. 

  • Employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted by law.

 

Most importantly, any employer who contravenes or fails to comply with the above will be liable on conviction to a fine or imprisonment not exceeding a period of one year or both a fine and such imprisonment. 

 

The purpose behind these changes is to bring South Africa in line with the World Health Organisation’s Framework Convention on Tobacco Control.

 

We would strongly recommend that employers take this Bill and its sanctions as a smoke signal indicating the changes to come and start making the necessary changes and accommodations to their businesses. 

 

For more information please contact Mohsina Chenia at 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Managing Day to Day Issues/ Problem Employees Full day workshop

27 September 2019

Tsogo Sun: Century City: Cape Town

Employment Equity Committee Training

27 September 2019 (Fully Booked)

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

01 November 2019

Emperors Palace: Convention Centre

07 November 2019

Tsogo Sun: Century City: Cape Town

The OHS Act and the Responsibilities of Management

29 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

AARTO and the Impact on Your Business

02 October 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

03 October 2019 (Fully Booked)

Emperors Palace Convention Centre

04 October 2019 (Fully Booked)

Emperors Palace Convention Centre

11 October 2019 (Fully Booked)

Emperors Palace Convention Centre

18 October 2019

Southern Sun: Elangeni: Durban

31 October 2019

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

27 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Problem-solving and Decision-making Skills

24 & 25 October 2019

Emperors Palace: Convention Centre

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

28 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Managerial and Leadership Skills

06, 07 & 08 November 2019

Emperors Palace: Convention Centre

2019: Case Law Updates

15 November 2019

Emperors Palace: Convention Centre  

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play