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[2016] ZALAC 50
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TFD Network Africa (Pty) Ltd v Singh N.O. and Others (CA16/15) [2016] ZALAC 50; [2017] 4 BLLR 377 (LAC); (2017) 38 ILJ 1119 (LAC) (8 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: CA 16/15
In the matter between:
TFD NETWORK AFRICA
(PTY)
LTD
Appellant
and
SINGH A, NO
First Respondent
NATIONAL BARGAINING
COUNCIL FOR THE ROAD
FREIGHT AND LOGISTICS
INDUSTRY
Second Respondent
MTWU obo I
MAAS
Third Respondent
Heard:
6 September 2016
Delivered:
08 November 2016
Summary: Night work in
terms of the National Bargaining Council Agreement for the Road
Freight Industry (as it was then known) promulgated
in Government
Gazette 26268 of 30 April 2004 as amended and applicable in December
2010 means work performed after 18h00 and before
06h00 the next day.
Night work may only be worked if certain conditions including
transportation are available between the employee's
place of
residence and the workplace at the commencement and conclusion of the
employee's shift which does not bear its defined
meaning but means
the end of the working day including overtime. 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 measure
as a defence to a charge of failing
to work or disobeying an
instruction.
Coram: Waglay JP,
Landman JA
et
Savage AJA
Neutral citation:
TFD
Network Africa (Pty) Ltd v Singh NO and Others
(LAC: PA 16/15)
JUDGMENT
LANDMAN JA
Introduction
[1]
TFD Network Africa (Pty) Ltd, the appellant, appeals against a
judgment of the Labour Court (Steenkamp J) upholding an award
by
Singh NO acting under the auspices of the National Bargaining Council
for the Road Freight and Logistics Industry, the first
and second
respondents reinstating Mr Maas (Maas), represented by Motor
Transport Workers Union (MTWU), the third respondent. The
appeal is
with the leave of the court
a quo
.
Background
[2]
It is common cause that Maas, a truck driver, employed by the
appellant, 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).
[3]
On 6 and 7 December 2010, while working his usual shift that ended at
17:00, Maas 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.
[4]
Maas was called before a disciplinary inquiry charged with breaching
his contract by failing to work overtime and refusing to
obey a
reasonable order. Maas related his defence as set out above and added
that in terms of the BCEA, public transport had to
be readily
available for night shift workers and there had been no suitable
transport available. The chairperson rejected his defence
and
dismissed him as he had previously been disciplined for a similar
offence.
[5]
Maas’s union referred a dispute to the Bargaining Council for
the Road Freight and Logistics Industry which had jurisdiction.
The
dispute was arbitrated before the first respondent. The appellant
contended that Maas 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
award
[6]
The arbitrator rejected these contentions and found for Maas. In
doing so, he said:
‘
18. The
onus rests on the employer to prove that the dismissal was fair and
that [a] fair procedure was followed in arriving at
the decision to
dismiss. It is common cause that the Applicant was given an
instruction to work overtime as is required in terms
of his contract
of employment. The issue of contention is whether or not the period
of overtime which the Applicant refused to
work falls under night
work. In terms of section 17 of the BCEA, any work performed after
18h00 and before 6h00 the following day
is considered night work. 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.
19. The Respondent contends that
transport was available, but that in any event, there was no
obligation to provide transport since
the period of overtime was
regarded as dayshift, as the majority of the period of work was
before 18h00. In my view, this
is a convenient misinterpretation of
the provisions of the BCEA. When overtime work is performed beyond
18h00 it falls under night
work. There is nothing in the BCEA to
suggest otherwise.
20. … The employer was
obliged to provide transport and clearly the transport that the
employer claims was available, was
not suitable for the Applicant. In
terms of the BCEA, it is a requirement that transport is
available to the employee’s
place of residence. The fact that
the Applicant, worked part of the overtime that he was required to
work, suggests good faith
on his part. He does not appear to have had
the intention to be deliberately insubordinate.’
Judgment
of the court
a quo
[7]
The appellant was dissatisfied with the award and launched review
proceedings which came before Steenkamp J who declined to
review and
set aside the award. Steenkamp J concluded that:
(a)
the
applicable legal instrument was the collective agreement but that it
reflected the provisions of the BCEA as regards night work;
(b)
transportation
needs only be available; the employer needs not to provide transport
if there is public transport available;
(c)
if
the employee’s full shift falls within the hours 18:00 and
06:00 there is no doubt that the transport subsection applies;
(d)
with
reference to Du Toit
et
al
Labour
Relations Law: A Comprehensive Guide
6
th
ed (Lexis Nexis 2015) at 605,the judge
a
quo
held that 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;
(e)
it
is notorious that Lentegeur (where Maas lives) is in the midst of the
Cape Flats’ ganglands;
(f)
the
concept of night work does not require work to be regularly
performed; and
(g)
the
award was not so unreasonable that no other arbitrator could have
come to the same conclusion.
Appellant’s
submissions
[8]
The chief submissions made on behalf of the appellant, in this Court,
are the following:
(a)
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;
(b)
permissible
overtime work, following on a normal working shift that ends
before18:00, that resorts within the hours of 18:00 to
06:00 does not
constitute night work;
(c)
there
is to be no overlap or contamination between the overtime section and
night work;
(d)
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 for night work, and additional obligations as
regards regular work after 23:00 and before 06:00;
(e)
in
the case of night work specific reference is made to the working
“shift” falling within night work period. Logically
this
means it is about the working “shift” as a whole and not
individual hours worked as a component of a shift;
(f)
an
employee would not be entitled to overtime and a night shift
allowance;
(g)
safety
is not the prime consideration as regards transport in relation to
night work. It is wrong to ask can the employee get home
safely;
(h)
an
employee may not put himself in a position eg by relocating that it
is the cause of his or her inability to secure transport.
See
National
Union of Metal Workers of SA on behalf of Hlekwayo v Bell Equipment
Co SA (Pty) Ltd
(2007) 28 ILJ 1632 (BCA)
;
and
(i)
Maas
was thus not entitled to refuse to work overtime or part of his
overtime and was fairly dismissed as he had a previous warning.
The
applicable provisions/clauses
[9]
At the outset, it is necessary to consider the relevance of the BCEA
to the issue at hand. First, it must be noted that at the
date of
Maas’s refusal to work overtime in December 2010, Maas and his
employer were governed by the National Bargaining
Council Agreement
for the Road Freight Industry (as it was then called) promulgated in
Government Gazette 26268 of 30 April 2004
as amended from time to
time (the council agreement) and, to an extent, the BCEA.
[10]
Secondly, s 4 of the BCEA provides,
inter alia
, that a basic
condition of employment constitutes a term of any contract of
employment except to the extent that the basic condition
of
employment has been replaced, varied, or excluded in accordance with
the provisions of the BCEA. As far as night work is concerned,
s
49(1) of the BCEA permits a collective agreement concluded in a
bargaining council to alter, replace or exclude any basic condition
of employment if the collective agreement is consistent with the
purpose of the Act provided that the collective agreement does
not
reduce the protection afforded to employees who perform night work in
terms of s 17(3) and (4).
[11]
When the council agreement of 2004 was concluded, it excluded and
replaced section 17(1) of the BEAC and replaced it with its
own
formulation. “Night-shift” was defined in clause 2(1) of
the council agreement of 2004, unless inconsistent with
the context,
to mean:
‘
a shift
during which five and a half or more ordinary hours of work, overtime
excluded, fall within the period reckoned from 18:00
to 06:00 the
next day.
’
[12]
The council agreement of 2004 was extended from time to time and was
in force when Maas refused to work overtime in December
2010.
However, the council agreement was amended as regards night work in
2007 in Government Gazette 30041 of 6 July 2007. The
definition of
night work in clause 2 was deleted and replaced with the following:
‘“
Night
work” means work performed after 18h00 and before 06h00 the
next day.’
[13]
Clause 17(1) of the council agreement was substituted by a new
clause. The following amendment is relevant:
‘
(1) An
employer may only require or permit an employee to perform night
work, if -
…
(b)
transportation is available between the employee's place of residence
and the workplace at the commencement and conclusion of
the
employee's shift.’
[14]
The definition of night work and the obligation regarding
transportation in the council agreement, at the time Maas was
dismissed,
mirrors those of the BCEA.
Analysis
[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 Municipality
2012 (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.
___________________
A A Landman
Judge of the Labour
Appeal Court
I
concur,
___________________
B Waglay
Judge
President of the Labour Appeal Court
I
concur,
_____________________
K M Savage
Acting
Judge of the Labour Appeal Court
APPEARANCES:
FOR
THE APPELLANT:
FOR
THE THIRD RESPONDENT: