Does South African legislation provide sufficient protection for employees with Internet addiction in the workplace?

November 1st, 2019
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The Internet has become an increasing part of many people’s day-to-day working lives and issues surrounding the use, abuse and addiction have surfaced. Internet addiction has serious implications on the workplace, such as loss of productivity, especially when companies do not implement Internet governance policies. There is currently no international consensus regarding the conceptualisation and diagnosis of Internet related disorders. An employee with an Internet addiction disorder is at risk and needs professional care and treatment. The most common sign of problematic Internet usage in the workplace is when employees look at pornography, when interactive chatting takes place during working hours or the employee plays games. A lot of companies have policies for Internet usage in the workplace, but few enforce these policies, because they are not aware of an employee’s Internet addiction.

Substance abuse and addiction is internationally recognised. It has been argued that non-substance (behavioural) addictions are no different from substance addictions such as alcoholism, in terms of the core components of addiction, which includes withdrawal, tolerance, salience, mood modification, relapse and conflict. South African legislation makes provisions for substance abuse and addiction in the workplace. Employers have dealt with substance abuse and addiction in the workplace and there are policies and legislation, which promote the prevention of substance abuse and addiction. Internet addiction shares the same characteristics as substance abusers and gambling addicts. Addictions, which include behavioural addiction, such as cybersex, online gambling and gaming are Internet related, so why would it not be wise to treat new forms of addiction the same way as substance addiction?

Diagnostics assessments

South Africa (SA) adopted the use of the International Classification of Diseases (ICD), which is the foundation of how health trends and statistics are identified, it also includes the international standard for reporting diseases and health conditions. The ICD-11, which was released in 2018, does not only make provision for disorders due to substance use or addictive behaviour, but also makes provision for online gaming disorders. Another way of classification of diseases or disorders is the Diagnostic and Statistical Manual of Mental Disorders (DSM) based criteria, which is the most accepted way to define a disorder. The DSM is a medical classification of disorders and serves as a historical determined cognitive schema imposed on clinical and scientific information to increase its comprehensibility and utility. A detailed description of pathological use of electronic media is now added to the DSM-V, as a ‘condition for further study’. The reason for this is that there is not any official diagnostic system for Internet addiction (excessive use of the Internet with resulting adverse consequences) and it is argued that Internet addiction is a common disorder, which merits inclusion in the DSM. Fifteen percent of the South African population have substance-related problems. It is important to create a substance-free workplace to promote the safety and health of employees, it is as important to acknowledge Internet addiction and create a safe and healthy workplace for employees. It is essential to determine whether an employee suffers from an addiction, because there are certain job applications, which exclude individuals with addiction or a disability (inherent requirement).

Duties of employers to their employees, dismissals and discrimination

The employer and employee have an employment relationship to maintain and there are certain laws, regulations and policies, which protect workers and promote decent work. Internet abuse raises serious occupational issues, such as a lack of productivity. The Code of Good Practice states that substance addiction in the workplace leads to incapacity. Internet addiction could lead to the dismissals of an employee. Section 10(3) of the Code of Good Practice states that dismissal specifically includes alcoholism as a form of incapacity and suggests that counselling and rehabilitation may be appropriate measures to be undertaken by a company in assisting such employees. In the case of Transnet Freight Rail v Transnet Bargaining Council and Others [2011] 6 BLLR 594 (CC), the distinction between incapacity and misconduct is a direct result of the fact that it is now accepted in scientific and medical circles that alcoholism is a disease and that it should be treated as such (see Mahlangu v Minister of Sport and Recreation [2010] 5 BLLR 551 (LC)).

This has been accepted by the Commission for Conciliation, Mediation and Arbitration and bargaining councils. When an employee has become too ill to perform their current work, an employer should follow accepted guidelines regarding the dismissal for incapacity before terminating an employee’s service. Why should non-substance addiction in the workplace be treated differently and offer no protection to the employee as to where there is protection for employees with substance addictions? Most employers dismiss employees for Internet abuse in the workplace without being aware of the fact that the employee could be suffering from an Internet addiction. Addictions, such as Internet addiction, will lead to incapacity rather than misconduct. Internet addiction is not just an abuse or excessive use of Internet in the workplace but should be classified as an addiction from which employees need protection.

Schedule 8 of the Labour Relations Act 66 of 1995 (the LRA) further recommends that employers should treat situations where, it is suspected or known that, an employee is dependent on intoxicating liquor or drugs as incapacity and not misconduct. This should refer to not only alcohol or drugs, but also Internet addiction. Currently, the LRA makes no specific provision for Internet addiction, and there is currently no South African case law that has dealt with this addiction in the workplace. According to s 9 of the Constitution employers may not discriminate on one or more grounds, which could impair their right to have their dignity respected and protected as stipulated in s 10. To not classify this addiction as a known disorder can lead to unfair dismissal and discrimination. Reasonable steps have been taken by employers that have dealt with alcohol and drug addiction to ensure that those employees recover from their addiction. Employers need to raise awareness of the serious issues that Internet abuse has on the work force.

Section 1 of the Employment Equity Act 55 of 1998 (the EEA) defines ‘reasonable accommodation’ as ‘any modification or adjustment to a job or to a working environment that will enable a person from a designated group to have access to or participate or advance in employment’. Employers may not unfairly discriminate against an employee on the grounds of disability. Employers may not deny or remove an employee from any supporting facility necessary for their functioning in society. Employees may not fail to comply with the Code of Good Practice or fail to eliminate obstacles that unfairly limit or restrict disabled employees from enjoying equal opportunities. Employers should also take steps to reasonably accommodate the needs of disabled employees.

According to s 8 of the Occupational Health and Safety Act 85 of 1993, employers have the duty to ‘provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees’. An employer also needs to take reasonable steps and precautionary measures to provide a safe workplace and eliminate the risk to an employees’ health. Employers have to ensure, as far as reasonably practicable, that individuals who are not employees and may be directly affected by their activities are not thereby exposed to hazards to their health or safety. According to s 15 of the Occupational Health and Safety Act employees must not intentionally or recklessly jeopardise anything which is provided in the interest of health or safety.

Deconstructing abuse, excessive use and addiction

In order to understand Internet addiction better, it is critical to distinguish between ‘abuse’, ‘excessive use’ and ‘addiction’. It is also important to know when ‘excessive use’ will become addiction. This distinction is necessary, because the abuse of a substance could lead to misconduct and such an employee would not be protected by law, but when an employee has an addiction, which is considered to be an illness, they will be protected by law (see the Mahlangu case). Internet addiction is a form of behavioural addiction similar to pathological gambling. Behavioural addiction starts when habits change into obligations, which then becomes an addiction. Excessive use of the Internet may not always be problematic, but the case study evidence does indicate that for some individuals, excessive Internet usage is a real addiction and of genuine concern. Employers need to know which Internet related behaviour is reasonable (an occasional e-mail to a friend) and which Internet related behaviour is unacceptable (online gaming during work hours). Despite the difference between behavioural and substance addiction, an employee with a behavioural or substance addiction needs to be protected.

A way to classify behavioural addiction is to mirror it with the symptoms and consequences of alcohol and drug addiction. Behavioural addiction has attained the quality of substance abuse. Extensive research suggests that Internet use can develop into compulsive behaviour, which continues despite the consequences, and it indicates behavioural addiction, which potentially includes Internet addiction. ‘Technological addictions are operationally defined as nonchemical (behavioural) addictions that involve human-machine interaction’ (M Griffiths ‘Does Internet and computer “addiction” exist? Some case study evidence’ (2000) 3 (2) Cyberpsychology & Behaviour 211). An employee who shows symptoms of addiction needs sufficient medical treatment.

Policies in the workplace for employees with addiction

Employers should provide their employees with information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of their employees. Employers must also ensure that such measures are enforced. The Occupational Health and Safety Act stipulated that their representatives need to assist in the promotion of this Act. Policies, which are implemented must make mention of the Occupational Health and Safety Act to determine whether the employer provides a safe workplace that includes managing substance abuse in the workplace.

South Africa has a Medical Research Council (MRC) regulated by the South African Medical Research Council Act 58 of 1991 and the council’s purpose, which is to research projects that include alcohol and drug abuse. The objective of this council is to help improve the health systems in SA in accordance with that of the Department of Health. These objectives can be promoted through development, research and technological transfer. This will improve the health and quality of life for South African employees. The MRC can compel the council to act according to their functions. The MRC did research on gambling disorder, which they described as the ‘inability to resist gambling despite severe disruption to work, social and family life’.

Employers can use the code of conduct on the management of alcohol and drug related issues from the ILO to implement effective measures to prevent, reduce and control substance-related problems in the workplace. Measures to control include –

  • the restriction on alcohol and drugs in the workplace;
  • prevention through information;
  • education and training programmes;
  • identification of symptoms;
  • assistance, treatment and rehabilitation programmes;
  • intervention; and
  • disciplinary procedures.

Interception of communication by employers are currently regulated by the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002. Through this Act, employers are able to regulate e-mail and Internet use by limiting the use of e-mails for operational means only and the employer can also regulate the attachments received in e-mails. Employers are authorised to implement Internet use policies in the workplace with sanctions for the non-compliance of these policies. According to s 30 of the Basic Conditions of Employment Act 75 of 1997, employers are obliged to give notice of these policies. The policies should regulate the conduct of the employees and also the employers, therefore, protecting both parties. Employers can stipulate in an employment contract that the private use of Internet is prohibited.

Conclusion and recommendations

Employees who can prove that they suffer from Internet addiction should be protected by South African legislation just as employees who have a substance addiction are protected. Excessive use becomes an addiction when life threatening consequences occur. This excessive problematic use causes conflict with an employee’s co-workers and employer. People with Internet addiction (which has been established is a form of behavioural addiction) should be treated the same as other substance addictions in the workplace. There is currently no criteria in SA to determine whether an employee suffers from Internet addiction. Internet addiction merits acknowledgement in a known assessment criterion such as the DSM-V or the ICD-11.

South African legislation does not provide sufficient protection for employees with Internet addiction in the workplace, therefore, SA should incorporate some of the legal principles established by other countries such as the United States, to combat Internet addiction in the South African workplace. South African legislation is familiar with Internet abuse/misuse in the workplace but does not acknowledge Internet addiction. Although there is limited medical research on Internet addiction, it is important to acknowledge the ‘coexistence of Internet abuse and other psycho-pathologies without considering one as the cause or symptom of the other’ (Ö Senormanci, R Konkan and MZ Sungur ‘Internet addiction and its cognitive behavioural therapy’ www.intechopen.com, accessed 15-10-2019). The acknowledgment of Internet addiction as a known disorder, will maintain a decent employer and employee relationship and will also promote the health of employers, employees and others.

Elma Pohl LLB (UFS) is a candidate legal practitioner at Thomas & Swanepoel Inc in Tzaneen.

This article was first published in De Rebus in 2019 (Nov) DR 38.