Global Employment briefing: South Africa, October 2018

• South Africa

• Employment law

03-10-2018

A new Tobacco Bill and a workplace smoking ban: employers should review their smoking policies

In line with global trends the South African legislature has drafted the Control of Tobacco Products and Electronic Delivery Systems Bill 2018 (“the Bill”), which is likely to be passed into law in the near future. The Bill prohibits smoking in any prescribed outdoor public place and, more importantly from an employment law perspective, at the workplace, where smoking may pose a health, fire or other hazard.

Notably, the Bill will have a broad application as the prohibition on smoking will not only apply to conventional methods of smoking, but also to new electronic smoking devices, such as, e-cigarettes and e-cigars. Section 1 of the Bill defines “workplace” as “any place in or which one or more persons are employed and performs their work, whether for compensation or voluntary, and includes any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area used during or incidental to the cause of employment or work”. The Bill also states that smoking within a prescribed distance from the entrance/exit of a building or window will be unlawful, which rules out smoking on a company balcony, in an undercover parking area or even a company car. This prohibition is not only applicable to employees at the workplace, but it also requires employers to ensure that no person smokes in any of these areas described.

The Bill imposes further obligations upon an employer. Amongst other things, it must ensure that:

• employees who do not want to be exposed to tobacco smoke are not exposed
• it is not an express or implied condition of employment that employees are required to work in an area of the workplace where smoking is legally permitted
• employees are not required to sign any indemnity for working in any area of the workplace where smoking is legally permitted

It is, therefore, prudent that employers appreciate their prospective responsibilities and the possible risk that they could be exposed to should they fail to comply with this Bill, the risk being that they could be held liable upon conviction of an offence to a fine or imprisonment of up to one year or both. Employers would be best advised to adapt their internal smoking policies to appropriately align themselves with the new Bill.

Case update: employees’ resignations are no longer a bar to disciplinary proceedings

A previous controversial decision of our Labour Court enabled a situation where employees who faced disciplinary action could circumvent this process by resigning with immediate effect. This deprived employers of the opportunity to discipline those employees in their notice period.

However, this has now changed with the recent decision of Mark Michael Coetzee v the Zeitz Mocaa Foundation Trust and Others. The court held that if an employee resigns with immediate effect, the employer can elect either to accept the employee’s repudiation of the employment contract or hold the employee to his/her notice period.

Therefore, if the employer requires that the employee work their notice period, the employer would be in a position to convene the disciplinary proceedings within this period and employees will no longer be able to evade imminent disciplinary action.