While it may not have been the intention, the Administrative Adjudication of Road Traffic Offences Act (‘AARTO’) may have a significant effect on the kind of employment relationship where the employee is required to spend a substantial period driving as a condition of his/her employment. Although AARTO has not been nationally implemented and is not yet in force as of the date of this article, it may be worthwhile for employers to now already consider the implications of AARTO and implement the measures to deal with these unintended consequences.
In terms of AARTO, the holder of a driving licence accumulates demerit points for traffic violations contained in the National Road Traffic Act. If a person, for example, incurs demerit points for disobeying a stop sign and continues to incur further demerit points, which in aggregate exceeds twelve points, that person is disqualified from driving a motor vehicle. For every demerit point above twelve demerit points that persons’ licence is suspended for a period of three months multiplied by the amount of points above twelve demerit points, thereby increasing the duration of suspension based on the number of demerit points incurred.
So what must courier, cash in transit, logistics, security and pharmaceutical companies and even the police and EMS operators who all employ employees to drive do should the drivers’ licence of an employee, whose core function is to drive, be suspended for a certain period?
The effect of AARTO is in essence that the employee has become “incapacitated” to perform his/her duties effectively or at all. This places a burden on an employer who under the Labour Relations Act cannot simply dismiss such an employee, but must either explore ways to accommodate him/her in some manner which does not involve driving or take steps to have such an employee dismissed. The dismissal of an employee is however a last resort in all cases involving an employment relationship.
Accommodating the employee in an alternative position
This in itself places a hefty burden on an employer, as the employer not only needs to find either another employee or temporary employee to perform the duties of the “incapacitated” employee which results in extra costs for the employer, but also, the “incapacitated” employee must now be accommodated somewhere else at the employer and still receive the equivalent amount of remuneration as previously received depending on the type of work that is to be done.
Such a situation may become intolerable and financially detrimental for an employer, particularly where a number of employees are so affected by the demerit system. It may also not be possible to accommodate all of the “incapacitated employees“ in alternative positions if they are unavailable to perform their normal duties.
Dismissing the employee
In order for an employer to dismiss such an employee, an employer must firstly hold an incapacity hearing, where both employee and employer must explore alternatives other than dismissal. The courts have placed an obligation upon employers in these circumstances to not only explore alternatives other than dismissal but to assist the employee in order not be “incapacitated”. An employer can for example be required to assist the employee in the legal process of possibly appealing against the decision to have the licence suspended for a certain period and to make representations against the suspension. Should an employer not be seen to have exhausted all alternatives other than dismissal and simply dismiss an “incapacitated” employee, such dismissal could be seen as unfair.
Solutions available to employers
An employer can make it a specific condition of employment that the possession of a drivers’ licence is not only an inherent requirement and pre-requisite to being employed, but also make it a rule of employment that should an employee become “incapacitated” as a result of the implementation of the demerit points system and have incurred more than the prescribed demerit points, that employee will be contravening a condition of employment which will result in an employee be guilty of misconduct.
The abovementioned option is not without difficulties as it can be argued by employees that some of their traffic violations occurred outside of working hours and have nothing to do with the employment relationship. However, if an employee’s conduct, albeit outside working hours, has an effect on the employment relationship in that it affected the employee’s ability to perform his/her duties and obligations towards his/her employer, the employer should be able to prove that the employee is guilty of misconduct and dismiss the employee on those grounds.
An employer would be well advised to determine whether AARTO will find application on its employment relationships and should seek the advice of labour experts to find contractual and policy mechanisms to mitigate the consequences of AARTO.