What is required from employers for night shift employees?
In its recent decision in TFD Network Africa (Pty) Ltd v Singh NO & Others, the Labour Appeal Court (the “LAC”) considered the interpretation of section 17 of the Basic Conditions of Employment Act, 1997 (“the “BCEA”); in particular, subsections 17(1) and (2), which regulate night work. Subsections 17(1) and (2) read as follows: “(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if -
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and (b) transportation is available between the employee’s place of residence and the work-place at the commencement and conclusion of the employee’s shift.”
The facts in this case were that Mr Maas, a truck driver employed by TFD Network Africa (Pty) Ltd (“TFD”), was required to work overtime on two days. His shift ended at 17h00 and he was required to work until 19h00. Mr Maas informed TFD that he was unable to work until 19h00 because of a lack of suitable transport to his home. He was prepared to work until 18h00 and, in fact, did so. However, he then left work. The reason he gave as to why he was not prepared to work until 19h00 was that the bus he would need to catch after 19h00 would drop him off some two kilometres from his home. He would have to walk the remainder of the way home in the dark though a crime-ridden area. However, this problem would not exist if he took a bus shortly after 18h00. Mr Maas’ failure to work until 19h00 resulted in TFD charging him with breaching his contract by failing to work overtime and refusing to obey a reasonable order. He raised the above facts, as well as the provisions of section 17, as a defence. TFD rejected this defence and he was found guilty and dismissed. Mr Maas subsequently referred an unfair dismissal dispute to the relevant bargaining council. At the arbitration, TFD argued that Mr Maas did not perform night work, as the majority of his shift did not fall between 18h00 and 06h00. TFD was therefore not obliged to provide him with transport to his residence at the end of his shift and was not obliged to pay him an allowance or reduce his working hours. The arbitrator found that when overtime is performed beyond 18h00, it is considered night work for the purposes of section 17, and therefore TFD ought to have provided Mr Maas with suitable transport to his home. Because this was not done, Mr Maas was not obliged to work until 19h00. Mr Maas’ dismissal was therefore found to be unfair and he was reinstated. TFD launched a review application in the Labour Court. Judge Steenkamp accepted that the BCEA did not apply, as the matter was regulated in a collective agreement of a bargaining council that bound TFD. The judge also accepted that the relevant clause of the collective agreement was identical to section 17 of the BCEA. The court found that the clause in the collective agreement, and section 17, apply irrespective of whether or not an employee regularly performs night work and irrespective of whether or not the majority of his or her shift falls between 18h00 and 06h00. The court considered the purpose of night work provisions and concluded that they are to avoid or minimise an employee’s exposure to health and safety risks. Although the court found that the arbitrator had erred in coming to the conclusion that the employer was obliged to provide transport (all that is required is that it be available), this did not render the award reviewable. TFD appealed to the LAC, which upheld the Labour Court’s finding and made the following instructive findings:
Although the LAC decision took into account the relevant provisions of the applicable collective agreement, the fact that its formulation accords with that of the BCEA, means that it is of relevance to all employers. In light of this judgment, employers must monitor overtime closely. Employers who request employees working a normal day shift to work overtime must either ensure that they do not work beyond 18h00, alternatively; should they require their services beyond 18h00, they are obliged to ensure that safe, affordable and reliable transport is available to get these employees home safely. Furthermore, these employees are entitled to an allowance (which could be a shift allowance) or to a reduction in their working hours in addition to the remuneration paid to them in respect of the overtime worked calculated at 1.5 times their normal rate of work. Also of importance are the provisions of subsections 17(3) and (4), dealing with the additional obligations placed on employers if employees regularly work between 23h00 and 06h00. If this is the case, employers are required to inform employees of any health and safety hazards associated with this work and the right to undergo medical examinations.
employment director [email protected] cell: +27 82 787 9934
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