TFD Network Africa (Pty) Ltd v Singh N.O. and Others (CA16/15) [2016] ZALAC 50 (8 November 2016)

Principle:

Where protective measures, specifically transport, are not available to an employee required to perform night work, the employee is entitled to raise the absence of those measures as a defence to a charge of failing to work or disobeying an instruction.

Facts:

A truck driver was contractually obliged to work overtime when his employer required him to do so. His terms and conditions of employment were regulated by the National Bargaining Council Agreement of the Bargaining Council for the Road Freight Industry of 2004 as amended and certain provisions of the Basic Conditions of Employment Act 75 of 1997 (the BCEA).

On 6 and 7 December 2010, while working his usual shift that ended at 17:00, the employee was instructed to work overtime until 19:00. He was of the view that he could not work until 19:00 because of a lack of transport to his home. But, he was prepared to work until 18:00 and did so. He then left to catch the bus, which would drop him off near his place of residence. He explained why he could not work until 19:00. This was because he would be obliged to board a bus that left at 19:15 and disembarks at the centre of Mitchell's Plain. He lived in Lentegeur and so would have to walk about 2 km to his place of residence. He said that it was not safe to walk home at this time of night.

The employee was called before a disciplinary inquiry charged with breaching his contract by failing to work overtime and refusing to obey a reasonable order. The chairperson rejected his defence and dismissed him as he had previously been disciplined for a similar offence.

The employee's union referred a dispute to the Bargaining Council for the Road Freight and Logistics Industry which had jurisdiction. At the arbitration the employer contended that the employee had not been requested to perform night work as the majority of the shift did not fall within the hours 18:00 and 06:00.The arbitrator rejected these contentions and found for the employee. In doing so, he held that when overtime work is performed beyond 18h00 it falls under night work. There is nothing in the BCEA to suggest otherwise.If an employee is required to perform work at night, the employer must ensure that transportation is available between the employee's place of residence and the work place at the commencement and conclusion of the shift.

The employer was dissatisfied with the award and launched review proceedings in the LC. The court held these were the relevant principles: (a) transportation needs only be available; the employer needs not to provide transport if there is public transport available; (b) if the employee's full shift falls within the hours 18:00 and 06:00 there is no doubt that the transport subsection applies; (c) the purpose of the regulation of night work is to avoid or minimize health risks and includes risks to the safety of workers during their commuting to and from work; (d) the concept of night work does not require work to be regularly performed; and (e) the award was not so unreasonable that no other arbitrator could have come to the same conclusion.

The appeal was dismissed by the LAC which confirmed when the obligation to provide transport is triggered and, importantly, held that the refusal to work if transport is not provided for night shift employees is justified.

Extract from the judgment:

[15]   The background facts are not decisive in this appeal. The clauses relating to night work apply regardless of gender, geographical location, whether it is light or dark at 18:00 or 06:00, and whether the employee lives in a dangerous area or one that is generally considered to be a safe area.

[16]   Night work raises a number of concerns, including the health, safety, compensation and transport of employees who perform work at night. It is for these reasons that night work is regulated by statute and by bargaining council agreements for the protection of these employees. Crucial to the governance of night work is the concept of night work.

[17]   The submission that the preponderance of the working shift must resort within the hours of 18:00 to 06:00 for the employee's work to constitute night work, has no foundation. To a large extent, this submission echoes the definition of night work that has been scrapped by the parties to the bargaining council. There is simply no indication that the parties to the council agreement intended night work to bear anything resembling the previous concept. The definition is unambiguous and does not lead to absurd results. It is apparent from clause 17 that all work performed between 18:00 and 06:00, whether occasional or regular work, is night work. But, work performed between 23:00 and 06:00 on a regular basis attracts further obligations for the employer as regards these employees.

[18]   The submission that permissible overtime work, following on a normal working shift that falls within the prescribed period does not constitute night work, does not take cognisance of the structure of the agreement. The agreement provides for ordinary hours, overtime, work on Sundays and public holidays etc. Leaving aside substitute measures, if an employee works his or her ordinary hours on a Sunday, it attracts double pay. If the employee works overtime, it attracts a special rate. Similarly, if the employee works ordinary hours or overtime after 18:00 and 06:00, it attracts a special night shift allowance. Each situation attracts a different rate or allowance according to the nature of the activity performed or time that it is performed and for different reasons. The result may be an accumulation of allowances but there is nothing inherently unfair or improper in this. The ancillary submissions that there is to be no overlap or contamination between the overtime clause and the night work clause, and that an employee would not be entitled to an overtime and a night shift allowance, also ignore the purpose of the different allowances.

[19]   The submission that the concept of night work is informed by the necessity for a specific agreement to do night work, transport being available, payment of an additional allowance or night work, and additional obligations as regards regular work after 23:00 and before 06:00, holds good insofar as the definition of night work must be interpreted with regard to its context. See Natal Joint Municipal Pension Fund v Endumeni Municipality2012 (4) SA 593 (SCA) at paras 17 and 25 -26. But, none of the clauses triggered by night work suggest that the definition does not mean what it says.

[20]   It was submitted that safety is not the prime consideration as regards transport in relation to night work and it is wrong to ask can the employee get home safely. It is unnecessary to decide whether safety is the prime consideration although there is much to be said for it, but safety is most definitely one of the considerations. The Code of Good Practice on the Arrangement of Working Time, published, in terms of section 87(2) of the BCEA, concerning the Design and Evaluation of Shift Systems, in item 4.2.5, enjoins employers to obtain, inter alia, information on:

'means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.'

[21]   The Code also provides in item 10.3.2 that employers who engage employees on night work should ensure, inter alia, that employees are able to obtain safe, affordable transportation between their places of residence and their workplace.

[22]   The issue concerning an employee that is obliged to work overtime who disables himself or herself from doing so is not germane to this appeal and does not require attention in this judgment.

[23]   I turn to the final submission, namely that in the case of night work specific reference is made to the working "shift" falling within the night work period. The word "shift", in this context, is a reference to clause 17(1)(b). Logically, it was submitted, this means the working "shift" as a whole and not individual hours worked as a component of a shift. The council agreement defines shift in clause 2 as meaning:

'any consecutive period of work, subject to the provisions of clause 5(1), in the course of a working day as defined that has been set by an employer for an employee, but shall not be deemed to include any period of overtime, as defined...'
[24]   If this definition of shift were to be applied then, somewhat extraordinarily, when night work is done transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift working day excluding overtime, ie transport needs not be available at home time but at the beginning of the overtime. This absurd result could not have been intended. The conclusion is therefore that when the word "shift" is used in clause 17(1)(b), it means the end of the working day including overtime.

[25]   The finding by the arbitrator that the dismissal was substantively unfair is a finding that cannot be interfered with and cannot be faulted. Where the protective measures are not available to an employee required to perform night work, the employee is entitled to raise the absence of those measures as a defence to a charge of failing to work or disobeying an instruction.

Order

[26]   I make the following order:

The appeal is dismissed with costs.