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[2015] ZALCCT 40
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TFD Network Africa (Pty) Ltd v Singh NO and Others (C571/11) [2015] ZALCCT 40; (2015) 36 ILJ 2142 (LC) (6 May 2015)
The
Labour Court of South Africa, Cape Town
Judgment
Case
No: C 571/11
DATE:
06 MAY 2015
Reportable
Of
interest to other judges
In
the matter between:
TFD
NETWORK AFRICA (PTY)
LTD
..................................................................................
Applicant
And
SINGH
N.O
...................................................................................................................
First
Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGHT AND LOGISTICS
INDUSTRY
............................
Second
Respondent
MTWU
Obo I
Maas
....................................................................................................
Third
Respondent
Heard:
22 April 2015
Delivered:
6 May 2015
Summary:
Review – BCEA s 17(2)(b) – availability of transport at
conclusion of shift – employee working dayshift
refusing to
work overtime after 1800 due to unavailability of transport to his
place of residence – arbitrator finding dismissal
for gross
insubordination unfair – not reviewable.
Judgment
STEENKAMP
J
Introduction
[1]
This
application for review considers the interpretation of s 17(2)(b) of
the Basic Conditions of Employment Act
[1]
and the identical provision in the Main Agreement for the Road
Freight Industry dealing with the availability of transport for
employees who work after 1800. As far as I could ascertain, our
courts have not dealt with the interpretation of that subsection
previously.
Background
facts
[2]
The
employee, Mr Maas
[2]
, is a truck
driver. In terms of his contract of employment he agreed to work
overtime when required to do so. The main agreement
concluded in the
National Bargaining Council for the Road Freight and Logistics
Industry (the second respondent) also provides
for overtime work. The
applicant, TFD Network Africa (Pty) Ltd, instructed the employee to
work overtime from 1700 until 1900 on
6 and 7 December 2010. (His
normal dayshift ended at 1700). He worked until 1800 on both days but
refused to work until 1900. He
said that the last bus that normally
dropped him off near his residence in Lentegeur in Mitchell’s
Plain left shortly after
1800. If he took the last bus to Mitchell’s
Plain at 1900, it would drop him off at the Mitchell’s Plain
town centre,
far from his residence. He would then have to walk home
through a dangerous crime area.
[3]
The employee was called to a disciplinary
hearing to face allegations of gross insubordination and breach of
contract. He had a
previous final written warning for similar
misconduct. He was dismissed.
[4]
The employee referred an unfair dismissal
dispute to the Bargaining Council. The arbitrator (the first
respondent) found that his
dismissal was unfair and ordered the
company to reinstate him. The arbitrator found that, in terms of s 17
of the BCEA, any work
performed after 1800 was considered night work;
that the employer was obliged to ensure that transport was available
to the employee’s
place of residence; that the available
transport was “not suitable” to the employee; and the
fact that the employee
was prepared to work until 1800 showed that he
did not have the intention to be “deliberately insubordinate”.
The
legal framework
[5]
Mr
Snyman
,
for the applicant, criticised the arbitrator for applying the
provisions of s 17 of the BCEA when, in fact, the parties’
conditions of employment were covered by the Main Agreement. But the
Main Agreement contains a clause identical to that in s 17
of the
BCEA, which reads:
“
(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 workplace at the commencement and conclusion
of the
employee’s shift”.
[6]
What does it mean to say that
transportation must be
available
between the employee’s
place of
residence
and the workplace at the
commencement and
conclusion
of the employee’s shift?
[7]
Two issues may immediately be disposed of:
7.1
Transportation need only be “available”;
the employer need not provide transport if there is public transport
available.
7.2
If the employee’s full shift falls in
the hours after 18:00 and before 06:00, there is no doubt that the
subsection applies.
[8]
The difficult situation arises in a
situation such as this one: Must the employer ensure that transport
is available to a dayshift
employee who is required to work overtime
beyond 18:00? And what does it mean to say that it must be available
between the workplace
and the employee’s “place of
residence”? Does it need to take the employee to her doorstep?
A block away? A kilometre
away, or 5 km?
[9]
These
questions are untested. The Court cannot take comfort in precedent.
It has to consider the purpose of the legislation and
the mischief
that the legislature (and the Bargaining Council) tried to combat.
The Explanatory Memorandum to the Basic Conditions
of Employment Bill
does not spell it out. The Court must follow a common-sense,
purposive approach. The learned authors in Du Toit
et al,
Labour
Relations Law: A Comprehensive Guide
[3]
say that the purpose of the regulation of night work is to avoid or
minimise health risks. In my view, that must also include risks
to
the safety of workers, including their commute to and from work.
Indeed, the authors of that work say:
“
For
safety reasons
, transport for employees
performing night work must be ‘available’ between the
workplace and the employees’ residences
at the commencement and
conclusion of their shift [s 17(2)(b)]. No clear duty is placed on
the employer to provide such transport
where other transport exists.
However, it would seem that the availability of public transport in
the vicinity of an employee’s
residence may, in certain
circumstances, not necessarily be enough to relieve the employer of a
duty to provide transport.”
[10]
It
is a notorious fact that Lentegeur is in the midst of the Cape Flats
ganglands.
[4]
Now consider the
hypothetical example of a young female employee who works a nominal
dayshift starting at 1100 and ending at 2000.
There is public
transport available to the Mitchell’s Plain town centre. From
there she has to walk, say, 2 km through the
gang infested badlands
of Lentegeur to her home in the dark. This is not an area where the
good citizens of Lentegeur take an evening
stroll along the
promenade. The streets are ruled by guns and Okapi knives. Can it be
said that this employee is not entitled to
transport, because she
works dayshift? I think not.
[11]
It was argued on behalf of the applicant
that s 17(2)(b) of the BCEA (and the equivalent clause in the main
agreement) is only applicable
to those employees who regularly do
night work. I do not agree. That interpretation would deprive
employees such as the hypothetical
woman discussed above of any
protection.
[12]
Such an interpretation is also, in my view,
not borne out by the wording of the section. Sections 17 (1) and
17(2) refer to ‘night
work’ as work performed after 1800.
In those cases, transport must be available. That must be juxtaposed
against the provisions
of ss 17(3) and (4) that are only applicable
to employees who perform work “on a regular basis” after
2300 and before
0600 the next day and in respect of whom more onerous
conditions apply.
[13]
I conclude, therefore, that s 17(2)(b)
envisages that an employer must ensure that transportation is
available between the workplace
and the employee’s place of
residence on each occasion where that employee has to work beyond
1800, and not only where that
employee regularly performs night work
or where his or her shift falls predominantly during the hours after
1800 and before 0600.
The
facts of this case
[14]
Those
considerations must now be applied to the facts of this case. The
employee, Mr Maas, usually worked until 1700. When asked
to work
overtime, he was willing to do so until 1800. He could then use the
bus that would drop him off “in the vicinity”
of his
residence, to use the phraseology of Du Toit et al.
[5]
That seems entirely reasonable. But was it unreasonable for him to
refuse to work until 1900?
[15]
It is common cause that transport was still
available at 1900. But that bus would not drop him at his “place
of residence”
as envisaged by s 17(2)(b), or even in its
vicinity. His concern that it would endanger his life to walk home
for a considerable
distance in that area at that time of night
appears to be a valid one.
The
award
[16]
The arbitrator found that the employer “was
obliged to provide transport”. That is an incorrect reading of
the subsection.
The employer must only ensure that transport is
available between the workplace and the employee’s place of
residence. But
that in itself does not make the award reviewable. The
arbitrator further noted that the transport that was available, was
“not
suitable” for the employee. It is in those
circumstances that the employer was obliges to provide transport that
would drop
the employee off closer to his place of residence. The
arbitrator also found that the fact that the employee worked part of
overtime
that he was required to work, suggested good faith on his
part. He did not appear to have had the intention to be deliberately
insubordinate. The arbitrator also took into account that the issue
of transportation had been raised with the trade union and that
it
was engaging with the employer in this regard.
Award
unreasonable?
[17]
Taking
into account the factors set out above and my reading of the purpose
of s 17(2)(b) of the BCEA and the equivalent clause
in the main
agreement, the conclusion reached by the arbitrator was not so
unreasonable that no other arbitrator could have come
to the same
conclusion.
[6]
[18]
The employee did refuse to work overtime
beyond 1800 in circumstances where the employer could not ensure that
transportation was
available between the workplace and’s place
of residence. He made it clear to the employer that that was the
reason for his
refusal. The finding by the arbitrator that he did not
have the intention to be deliberately insubordinate, is not
unreasonable.
In those circumstances, the fact that he had a prior
final written warning for a similar offence becomes irrelevant.
Conclusion
[19]
The conclusion reached by the arbitrator is
not so unreasonable that no other arbitrator could have come to the
same conclusion.
[20]
With regard to costs, I take into account
that the employee was represented by a trade union official and thus
did not have to incur
any legal costs. I also take into account that
there is an ongoing relationship between the trade union and the
employer; and that
the interpretation of s 17(2)(b) of the BCEA is
res nova
that
has not previously been considered by this Court or a higher court.
In law and fairness a costs order is not appropriate.
Order
[21]
The application for review is dismissed.
Steenkamp
J
APPEARANCES
APPLICANT: S
Snyman (attorney).
FIRST
RESPONDENT: E Mabua (union official).
[1]
Act 75 of 1997 (BCEA).
[2]
The third respondent, represented by his trade union, MTWU.
[3]
6
th
ed (LexisNexis 2015) p 605.
[4]
For example, earlier this year, a man was shot and killed at
Lentegeur High School in gang-related violence:
http://ewn.co.za/2015/02/26/CPF-concerned-over-ongoing-gang-violence
.
(accessed on 22 April 2015).
[5]
Labour
Relations Law: A Comprehensive Guide (supra)
p 605.
[6]
Sidumo
v Rustenburg Platinum Mines Ltd (
2007)
28
ILJ
2405
(CC);
Herholdt
v Nedbank Ltd
2013
(6) SA 224
(SCA), (2013) 34
ILJ
2795 (SCA).