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Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA)

By Sarah Modise 

 

Substance abuse in the workplace may, in many cases, be found to be a dismissible offence. Although this can be viewed to be an individual's problem, it can also affect an employee's performance at work resulting in absenteeism, accidents, illness and mortality – all of which could add to the employer's costs.


Substance abuse has been linked to negative occurrences in the workplace such as stress, monotonous work, shift work, work requiring relocation and the frequent changes in co-workers and supervisors (ILO). The aim of this article is to examine how substance abuse affects the workplace and what measures employers and employee representatives could implement in order to eliminate the problem.


HOW SUBSTANCE ABUSE AFFECT THE WORKPLACE

The issue of substance abuse in the workplace has always been met with a dismissive attitude and swept under the carpet. However, when all incidents at work are accessed collectively it becomes important for the company to see it as a great concern. According to studies conducted by the International Labour Organisation (ILO) on the abuse of alcohol and drugs in the workplace, the following was found:

• Absenteeism of employees with alcohol and drug problems was three times higher than for other employees,
• Employees with chemical dependence problems claimed sick benefits three times more than other employees and also made compensation claims five times more than other employees,
• 20% to 25% of injuries in the workplace involved employees under the influence of alcohol, and
• Drugs and alcohol supplied at work amounts to 15% to 30% of all accidents at work.

It is not only heavy drinking that might result in incidents at work, but even low quantities of alcohol consumption have resulted in incidents. A study conducted in the 1990's has shown that even though alcohol is consumed in small quantities the effects can be costly for the employer. The study was conducted amongst airline pilots performing routine tasks in a simulator under three alcohol conditions. The outcome was that, before the pilots could drink any alcohol, 10% of them could not perform all tasks correctly. After a blood alcohol concentration of 0.10/100ml, 89% could not perform all the operations correctly and after all the alcohol had left their system, 68% could not perform all the operations.

Clearly this reveals that substance abuse should not be seen as only affecting heavy users as incidents can result from the consumption of low quantities of alcohol as well. Thus, it becomes important for employers to implement preventative measures and management programmes rather than just concentrating on the identification and rehabilitation of heavy users.
  
MEASURES TO ASSIST IN THE PREVENTION AND CONTROL OF "SUBSTANCE ABUSE"

The workplace can play an important role in preventing and providing remedies for substance abusers. The ILO has a code of conduct on the management of alcohol and drug related issues in the workplace. This can serve as a guideline for employers wishing to implement appropriate measures to prevent, reduce and control alcohol and drug related problems in the workplace.

DEVELOPMENT OF AN ALCOHOL AND DRUG POLICY FOR THE WORKPLACE

According to the code employers, together with employee representatives, should develop, in writing, a policy on alcohol and drug abuse. If possible, the policy should be formulated with the help of medical personnel and other experts who have specialised knowledge regarding alcohol and drug related problems. The policy should include information and procedures on:

• Measures to control "substance abuse" in the workplace through good employment practices

The code advises that where it is shown that certain job situations may contribute to substance abuse the employer together with the employee representatives should identify and take appropriate preventative or remedial action. Workers and their representatives should also not formally or informally support behaviour, which incites, encourages or otherwise facilitates the harmful use of alcohol or the abuse of drugs on the premises. When an employee voluntarily discloses a previous history of substance abuse, the employer should take steps to ensure that the employee is not exposed to a working situation which might, in the past, have resulted in the employee's problem.

• Restriction on alcohol, legal and illegal drugs in the workplace

The employer together with consulting parties should consider restricting or prohibiting the possession, or consumption and the selling of alcohol in the workplace. The employer should, after consultation with employee representatives, consider withdrawing alcohol as an item for expense account reimbursement or restrict it to specific situations. Employers should also be prevented from paying any wages in the form of alcohol or drugs. The above should apply to both management and workers. In those instances were medication might result in significant impairment, the employee should consult a health professional and inform his/her senior in accordance to normal procedures for absence for health reasons.

• Prevention through information, education and training programmes

The code advocates that employers should promote safety and health in the workplace through information, education and training programmes on the physical and psychological effects of alcohol and drug use. These programmes should be directed at all employees. The information, education and training programmes should also include the following information:


- General and specific to the workplace laws and regulations on alcohol and drugs,
- Suggested steps to prevent such problems from occurring, and
- Services available to assist the employees both within and outside the workplace. This will include information on assessment and referral services, counselling, treatment and rehabilitation.

It is recommended that managerial staff should be provided with additional training in order to assist them in identifying changes in the individual's performance and behaviour. The training will also equip managers with the necessary skills to respond to questions regarding the company policy on alcohol and drugs. After the training, they will also be able to support a recovering worker's needs and monitor that individual's performance when he/she returns to work.

Additional training should also be provided to employee representatives In order to enable them to assist employees who require help and to identify working methods or conditions that need to be changed or improved to prevent, reduce or better the management of alcohol and drug related problems. Training would further assist them in explaining and responding to questions related to company policies regarding alcohol and drugs.


• Identification

Identification of employees with problems could be conducted at different levels, including, self-assessment, and informal identification through a friend, family member or fellow employee and formal identification. Formal identification may include testing and should be done in accordance to the applicable laws and practices.


• Assistance, treatment and rehabilitation programmes

The code further suggests that employees with alcohol or drug related problems should be treated in the same manner as workers with other health problems. Therefore, workers who seek rehabilitation should not be discriminated against and should enjoy the normal benefits that are offered by an employer including the opportunity for transfer and promotion. The exceptions are in those cases where it has been identified that the employee is no longer fit to do their work. In such instances, the employer should assist the employee to obtain access to counselling, treatment and rehabilitation.

Assistance to employees with problems could vary according to the size of the company. Small companies could assist by providing employees with the names of identified professionals and services that specialise in counselling, treatment and the rehabilitation of employees, for example, self help groups such as Alcoholic Anonymous (AA). Big companies, on the other hand, might consider the establishment of an Employee Assistance Programmes (EAP). In other instances, employees might consider establishing their own programme.

• Intervention and disciplinary procedure

The code additionally recommends that employers should be aware that an employee who suffers from an alcohol and/or drug problem might also be suffering from a health problem and should consider offering counselling, treatment or rehabilitation as an alternative before deciding to discipline the employee. Disciplinary rules regarding substance abuse should be communicated to employees so that they are clear in terms of what is prohibited and the type of sanctions for the violation of such rules.

CONCLUSION

More and more employers have established substance abuse programmes in order to respond to the problems that are created by drugs and alcohol in the workplace. These programmes save money and in some cases, they save careers, families and lives. In an effort to raise awareness about the impact of substance abuse in the workplace, the ILO implemented its code in 1995. Although dated, the code is still relevant and can assist employers develop and maintain an alcohol and drug free workplace. It is in the interest of each employer to implement such a policy, if it has not done so already. The failure to do so will continue to adversely affect one's workplace and have a serious impact upon productivity.

REFERENCES

Mukhi, Niloufer. (undated) How decent is your workplace? ILO publication. www.ilo.org.za - accessed in January 2004. International Labour Organisation. Drug and alcohol-abuse- an important workplace issue. ILO publication, Geneva. www.ilo.org.za - accessed in January 2004. International Labour Organisation. Code of conduct on the management of alcohol-and drug-related issues in the workplace. ILO publication, Geneva. www.ilo.org.za - accessed in January 2004.

 

The Protection of Personal Information


By Jan du Toit, Senior Consultant, SA Labour Guide

 

After more than seven years in the making, President Ramaphosa announced last year an effective date of 1 July 2020 for the Protection of Personal Information Act (POPI), Act 4 of 2013. “Responsible Parties” only have approximately 5 months left until 30 June 2021 to become compliant in full.

 

The duration of a typical POPI compliance project will differ from one business to another depending on the nature and size of the business, as well as the Personal Information processed by a Responsible Party. Business owners are therefore advised to, without delay, embark on a compliance project to meet the deadline.

 

Even though the Protection of Personal Information Act is welcomed by most, it has been long overdue and will require business owners (“Responsible Parties” in terms of the Act) to process Personal Information according to 8 processing conditions as set out in the Act.

 

The purpose of the Protection of Personal Information Act is in essence found in the title of the Act; to protect the Personal Information of “Data Subjects”. It gives effect to ones right to privacy as enshrined in the Constitution but also provides balance in terms of the right to privacy weighed up against the right to access to information.

 

The Act regulates the manner in which Personal Information must be processed and provides protection and recourse to those whose rights are infringed. Further to this, the Act makes provision for the establishment of an Information Regulator. Advocate, Pansy Tlakula has already been appointed as the Information Regulator a couple of years ago and has done a great deal of work in establishing her office.

 

Before I get into more detail about the eight processing conditions, it is important to note that the Act is “definitions driven”. It is therefore of utmost importance to first highlight some of the definitions found in the Act for readers to better understand the eight processing conditions.

 

The first definition is that of “Personal Information”. Personal Information is widely defined in the Act and includes, but is not limited to, information relating to an identifiable living natural person or a juristic person (“Data Subjects”), such as:

  • Race, gender, sex, pregnancy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, believe, culture, language, birth

  • History - education, medical, financial, criminal, employment

  • Identifiers – number, symbols, e-mail address, physical address, telephone numbers, location, online ID or other assignment to a person such as a unique identifier (in example a student or patient number)

  • Biometric information – physical or psychological behavioural characterization, blood type, fingerprints, DNA analysis, retinal scanning, voice recognition

  • Personal opinion views or preferences

  • Correspondence implicitly or explicitly of a private and confidential nature

  • Views or opinions of another individual\

  • The name of the person with other information or the name alone

 

The second definition of importance is that of “processing”. The processing of Personal Information includes but is not limited to any operation/activity or any set of operations, whether automated or not, concerning Personal Information. It includes:

  • Collection / receipt / recording / organizing / collation / storage / updating / modification / retrieval / alteration of Personal Information

  • Dissemination by means of transmission distribution or making available to others.

  • Merging / linking / restricting / degradation / erasure / destruction of Personal Information.

 

A Responsible Party can either be a public body, private body or any other person or persons, domiciled in South Africa and that determines the purpose and means for processing of Personal Information.

 

Throughout the entire lifecycle of Personal Information in any business, eight processing conditions must be adhered to. The eight processing conditions are summarized below:

 

Condition 1 – Accountability. The Responsible Party must always ensure that the conditions set out in Chapter 3 of the Act and all the associated measures are complied with.

 

Condition 2 – Personal Information must be collected and processed lawfully in a reasonable manner that does not infringe the privacy of a Data Subject. The Personal Information may only be processed if it is adequate, relevant, and not excessive.
Personal Information may only be processed if the Data Subject consented thereto. Alternatively, where it is necessary to do so for the conclusion or performance of a contract, an obligation in terms of law, to protect the legitimate interest of the Data Subject, or to pursue a legitimate interest of the Responsible Party.

 

A further requirement is that the Personal Information must be collected directly from the Data Subject.

 

Condition 3 requires that Personal Information must be collected for a specific explicitly defined and lawful purpose related to a function or activity of the Responsible Party. Such Personal Information may not be retained any longer than necessary for achieving the purposes for which the information was collected and/or subsequently processed.

 

Condition 4 prohibits the further processing of Personal Information unless such processing is compatible with the initial purpose of collecting the information.

 

Condition 5 requires that Responsible Parties must take reasonable, practicable steps to ensure that Personal Information is complete, accurate, and not misleading. Such Personal Information must also be kept up to date, taking into consideration the purpose of the Personal Information.

 

The nature and purpose of the Personal Information will dictate as to how often such Personal Information must be updated.

 

Condition 6 addresses some of the rights of Data Subjects, such as the right to be informed by the Responsible Party before information is collected. The purpose of collecting and from where Personal Information will be collected must be disclosed to the Data Subject.

 

A Data Subject is entitled to the details of the Responsible Party and to be made aware of the consequences of not making Personal Information available to the Responsible Party.

 

Should it be required that Personal Information be collected and processed in terms of legislation, the Data Subject must be made aware accordingly.

 

As per Section 72 of the Act, the Data Subject must be advised if Personal Information will be transferred across the borders of South Africa. Under such circumstances the Data Subject is entitled to first be made aware of legislation in other countries that provides adequate protection of the Personal Information. In the absence of legislation, whether there are any binding corporate rules in place, alternatively a written agreement that offers adequate protection for the Data Subject, concluded between the Responsible Party and he third party.

 

Condition 7 requires that Responsible Parties must secure the integrity and confidentiality of Personal Information by taking appropriate reasonable, technical and organisational measures, to prevent loss or unlawful access of Personal Information under the control of a Responsible Party.

 

In this regard the Responsible Party is required to identify all reasonable and foreseeable internal and external risks, and to establish and maintain appropriate safeguards. Compliance with such safeguards must be regularly audited and measures updated if so required.

 

Condition 8 deals with the rights of Data Subjects and participation. In terms of condition 8, Data Subjects have the right to establish whether Personal Information is held by a Responsible Party and to have it corrected or destroyed if it is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or have been obtained unlawfully.

 

Responsible Parties are also further required to introduce Data Subject rights and participation in their PAIA (Promotion of Access to Information Act) manuals.

 

Responsible Parties are also not permitted to send direct marketing material to Data Subjects without their written consent as per from 4 four of the regulations of the Act.

 

Other important considerations in terms of the Act are that a Responsible Party may be issued with an administrative fine of up to R10 million for its non-compliance with the Act. Additionally, Data Subjects have the right to sue Responsible Parties and under specific circumstances, the Information Officer of the Responsible Party may be imprisoned.

 

Each Responsible Party must register an Information Officer (the head of the organization or a person acting in such capacity) with the Information Regulator. The Information Officer may appoint deputies to assist with ensuring compliance within the business.

 

From the above, it is evident that a POPIA compliance project is not something that should be undertaken without a solid understanding of the Act.

 

Our subscribers, a.k.a. “Responsible Parties”, are invited to attend our online POPIA presentations to better understand the Act and to ensure compliance. In-house training can also be arranged on request.

 

The author of this article is also available to assist employers with compliance projects in the form of awareness sessions, gap analysis, policy development / implementation and staff awareness.

 

For further information pertaining to training, readers are invited to visit www.labourguide.co.za or to contact Jan du Toit at .

 

 

 

 

 

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