The LAC disallowed the appeal against the judgment of Steenkamp J.  In this particular matter night work 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.  So it 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 measures as a defence to an allegation of failing to work or disobeying an instruction.

TFD Network Africa (Pty) Ltd v Singh NO (CA16/15) [2016] ZALAC 50 ; [2017] 4 BLLR 377; (2017) ILJ 1119 (LAC) (8 November 2016) per AA Landman JA (Waglay JP and Savage AJA concurring)

See also Du Toit et al Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at 605.

Excerpts without footnotes

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.

. . . . .

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 6th ed (LexisNexis 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.

. . . . .

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 BCEA 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.

. . . . .

[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.’

. . . . .

[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.