Smoking in the workplace

I do believe that most businesses (employers) have a smoking policy in place. Smoking in the workplace is governed by the Tobacco Products Control Act, Act 83 of 1993. The framework for such smoking policy is set out in government notice GNR975 of GG 21610 of 19 September 2000. 

In terms of item 6, an employer must ensure that no person smokes anywhere other than in the designated smoking area in that work place. Item 7 requires that an employer must ensure that employees who do not want to be exposed to tobacco smoke are protected from tobacco smoke in that workplace and employees may object to tobacco smoke in the workplace without retaliation of any kind. An employer, may totally prohibit smoking at its work place, therefore, as far as our law stands, there is no right to smoke at the workplace.

Thus, the employer has to ensure that the smoking policy complies with said framework. Thus, employees have to protected from tobacco smoke in the workplace.

We have to ask ourselves the following question: If the employer fails to implement a smoking policy, which complies with the above framework, or if the employer fails to react to the complaints of employees regarding smoking in the workplace, and said employee resigns from employment, can it be said that such failure constitute constructive dismissal?

The only case law that I could find on this particular topic is the matter of Naude and Stealth Marine (2004) 13 MEIBC 6.13.3. 

The applicant had respiratory problems and previous serious health conditions, which included asthma attacks as a result of smoking and she had an allergy to cigarette smoke.
 

The employer’s premises had no designated smoking areas. The reception area was situated downstairs and the administrative offices were situated upstairs. The factory was outside. Staff smoked in the corridors, in the reception area and in their offices upstairs. Smoke often trickled down from the upstairs offices, into the reception area.

Within two weeks of commencing employment the applicant developed a reaction to the cigarette smoke and got sick. The applicant had a tight chest and difficulty breathing and developed nausea, headaches and light-headedness. She complained about the smoking to her boss and informed the employer about her allergy and the fact that she would develop serious health problems if staff did not stop smoking inside the building. Her supervisor said she would address the problem, but the smoking in open areas persisted. To make matters worse, her superior promised to ask the staff to stop smoking inside the premises, but he himself continued to smoke inside. The staff also continued to smoke inside the building. The applicant complained to her direct supervisor every day and on 29 April the applicant left early, as she could not tolerate the smoke any more. When she returned on the 30th, four people were again smoking inside the building. The applicant advised her boss that she had to leave, as she was unable to continue to work under the circumstances.

The commissioner found that, in terms of the Tobacco Products Control Act 83 of 1993 smoking is not allowed in offices or in public areas in workplaces. Smoking is only allowed in designated areas and it is the duty of an employer to ensure that the Act is complied with. On the applicant’s version the respondent failed to implement antismoking legislation in the workplace. The employer’s actions were therefore unlawful in allowing employees to smoke inside the administration building. It is important to note that the applicant in this case was not the average, healthy, non-smoking employee who was indignant at the fact that her employer was not complying with antismoking legislation. The applicant was previously a heavy smoker and had developed serious respiratory problems and an allergy to cigarette smoke as a result of her habit. The applicant developed debilitating physical symptoms when exposed to cigarette smoke. On the evidence before the commissioner, the respondent created an intolerable working environment for the applicant. The applicant was unable to be productive.

In the view of the commissioner, the applicant has proved that she was dismissed and that the respondent created an intolerable situation at the workplace that forced her to resign.

The warning is clear: Employers have to take smoking policies seriously, especially the complaints of non-smoking employees.