Home


The Tobacco Products Control Act provides for the protection of non-smokers - it does not provide any benefit or protection for smokers.

In addition, smoking in the workplace is not regulated by Labour Law but only by the above-mentioned Act. In terms of this Act, the employer is obliged to take steps to protect his non-smoking staff from the cigarette smoke of the smokers. There is no obligation whatsoever on the employer to provide smoke breaks, and indeed if he does provide smoke breaks he is entitled to insist that those employees must work in the time taken for' smoke breaks'  after hours, without additional remuneration, or he can total up the 'smoke breaks time' and deduct it from wages at month end.

         

The employer is entitled to ban smoking completely on his building or in the workplace if he wishes to, and he can designate any area of his choice to be the smoking area. This could be the roof of the building, or the car park, and the employer is under no obligation to provide an alternative smoking area in the event of inclement weather. In short, the employer is under no obligation to facilitate the addiction of the smoker to the drug nicotine, just as he is under no obligation to facilitate the addiction of any employee who may be addicted to alcohol, narcotics and so on. When you consider that these no obligation on the employer to provide an alcoholic employee with ' drink breaks', why should there be an obligation on him to provide' smoke breaks' to an Employee who is addicted to nicotine ?

       

The employer is obligated to comply with the following regulations in the Act if he wishes to provide a smoking area:

Section 3 :  Tobacco Products Control Act :

 

Note : A "workplace" falls within the definition of and is regarded as a  "public place."

1) An employer, owner, licensee, lessee or person in control of a public place may designate a portion of a public place as a smoking area, provided that-

a) the designated smoking area does not exceed 25% of the total floor area of the public place;

b) the designated smoking area is separated from the rest of the public place by a solid partition and an entrance door on which the sign "SMOKING AREA" is displayed, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background;

c) the ventilation of the designated smoking area is such that air from the smoking area is directly exhausted to the outside and is not re-circulated to any other area within the public place;

d) the message: "SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NONSMOKERS. FOR HELP TO QUIT PHONE (011) 720 3145" is displayed at the entrance to the designated smoking area, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background; and

e) notices and signs indicating areas where smoking is permitted and where it is not permitted must be permanently displayed and signs indicating that smoking is not permitted must carry the warning: "ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE".

 

Section 6 , 7 , 8 , 9 : Tobacco Products Control Act.

6)  An employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place.

 

7) An employer must ensure that-

a) employees who do not want to be exposed to tobacco smoke in the workplace are protected from tobacco smoke in that workplace; and

b) employees may object to tobacco smoke in the workplace without retaliation of any kind. 

 

8) Employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999). 

9) Any employer, owner, licensee, lessee or person in control of any public place or part of a public place may totally prohibit smoking in that place.

 

For more information contact   

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

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

 

 

 

 

 

Courses and Workshops

 

                   

 

The OHS Act and the Responsibilities of Management

03 December 2020 (08:30 – 16:00)

Interactive Online Course

 Our Clients 

 

Android App On Google Play

Android App On Google Play