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:

· night work provisions apply to all employees who work between 18h00 and 06h00, regardless of gender, geographical location, whether it is light or dark at 18h00 or 06h00, and the dangerous or safe nature of the area in which the employee lives.

· night work is regulated because it seeks to address a number of concerns, such as health, safety, compensation and the transport of employees who perform work at night.

· TFD’s argument that the majority of the employee’s work must be performed between 18h00 and 06h00 for it to constitute night work lacked substance. The relevant clause in the collective agreement is clear and unambiguous in that work performed between 18h00 and 06h00, occasional or regular, constitutes night work.

· the collective agreement provides various rates to be paid in respect of overtime worked, work done on public holidays and Sundays. Provision is also made for the payment of allowances to employees who perform night work. The argument presented by TFD that overtime worked by an employee following the completion of a normal working shift does not constitute night work was rejected on the basis that this argument fails to take into account the purpose of allowances and rates of remuneration. The court accepted that this situation may give rise to an accumulation of allowances and remuneration calculated at different rates, but held that this is not inherently unfair or improper.

· the Code of Good Practice on the Arrangement of Working Time places an obligation on employers to, inter alia, obtain information on the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting. It further provides that employers who engage employees on night work should ensure that employers are able to obtain safe, affordable transportation between their places of residence and their place of employment.

· with reference to the word “shift” in the relevant clause, the court held that this refers to the end of the working day, including overtime.

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.

Suemeya Hanif

employment director [email protected] cell: +27 82 787 9934