The regulation of night work is governed by section 17 of the Basic Conditions of Employment Act, 1997.  Section 17(1) defines night work as work performed after 18h00 and before 06h00 the next day.  Section 17(2)(b) of the Act provides that an employer may only require or permit an employee to perform night work if transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.

In TFD Network Africa (Pty) Ltd v Singh NO & Others [2017] 4 BLLR 377 (LAC), the Labour Appeal Court had to determine whether an employer has to ensure that transport is available to a day-shift employee who is required to work overtime beyond 18h00.

The employee, Mr Maas was employed by TFD Networks Africa (Pty) Ltd ("TFD Networks ") as a truck driver.  Mr Maas’ normal day-shift ended at 17h00.  In terms of his contract of employment, Mr Maas agreed to work overtime when required to do so and the main agreement concluded in the National Bargaining Council for the Road Freight and Logistics Industry ("NBCRFLI") also provides for overtime work.

On 6 and 7 December 2010, TFD Networks instructed Mr Maas to work overtime from 17h00 to 19h00.  Mr Maas worked until 18h00 on both days but refused to work until 19h00.  Mr Maas’ reason for refusal was that the last bus that normally dropped him off near his residence in Lentegeur in Mitchell’s Plain left shortly after 18h00.  If he had to take the last bus to Mitchell’s Plain at 19h00, it would drop him off at the Mitchell's Plain town centre which is far from his residence and he would then have to walk home through a dangerous crime area to his residence.

Aggrieved by Mr Maas’ conduct, TFD Networks instituted disciplinary proceedings against him on the allegations of gross insubordination and breach of contract.  Mr Maas had a final written warning for similar misconduct and was dismissed following a disciplinary hearing.

Mr Maas referred an unfair dismissal dispute to the bargaining council.  The arbitrator found that his dismissal was unfair and ordered TFD Networks to reinstate him.  The arbitrator held that in terms of section 17 of the Act, any work performed after 18h00 and before 06h00 was considered night work; TFD Networks was obliged to ensure that transport was available to Mr Maas’ place of residence; that the available transport was ‘not suitable’ for Mr Maas; and the fact that Mr Maas was prepared to work until 18h00 indicated that he did not have the intention to be ‘deliberately insubordinate’.

TFD Networks took the award on review to the Labour Court.  TFD Networks criticised the arbitrator for applying the provisions of section 17 of the Act while the parties’ conditions of employment were governed by the main agreement under the NBCRFLI.  However, it is important to note that the main agreement contained a similar provision to section 17 of the Act.  TFD Networks argued that section 17(2)(b) of the Act is only applicable to those employees who regularly do night work.

In determining the matter, the Labour Court considered the purpose of the legislation and the mischief that the legislature was trying to combat by regulating night work.  The Labour Court found that the purpose of the regulation of night work is to avoid or minimise health risks, including the risks to the safety of workers commuting to and from work.

The Labour Court rejected TFD Networks’ contention that section 17(2)(b) of the Act only applies to employees who regularly do night work.  The Labour Court held that such an interpretation would deprive the employees of any protection afforded by section 17(2)(b).  Accordingly, the Labour Court held that section 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 18h00, and not only where the employee regularly performs night work or where his or her shift falls predominantly during the hours after 18h00 and before 06h00.

In the circumstances, the Labour Court concluded that Mr Maas’ concern that it would endanger his life to walk home for a considerable distance at night from Mitchell’s Plain town appears to be a valid one.

However, the Labour Court found that the arbitrator’s finding that the employer 'was obliged to provide transport' was an incorrect reading of section 17(2)(b).  The employer must only ensure that transport is available between the workplace and the employee’s place of residence.  The Labour Court further noted that the transport was available at 19h00 but it was not suitable for Mr Maas since it was not going to drop him off 'in the vicinity' of his residence.  The award of the arbitrator was held not to be unreasonable and the review was accordingly dismissed.

Dissatisfied with the judgment of the Labour Court, TFD Networks appealed the decision to the Labour Appeal Court.  TFD Networks argued that the provisions of the main agreement regulating night work applied only when most of an employee’s shift falls between 18h00 and 06h00 and that the agreement did not apply when employees perform work after 18h00 on overtime.  The Labour Appeal Court rejected these submissions.  It  found that the employer’s duty to provide transport at the beginning and end of a “shift” contemplated in section 17(2)(b) applies to work performed after the end of the working day, including overtime work, between 18h00 and 06h00.  The LAC further held that an employee’s safety to get home is one of the considerations that the regulation of night work attempts to preserve.

The Labour Appeal Court concluded that since TFD Networks had failed to provide the protective measures to Mr Maas while he was required to perform night work, TFD Network had attached an unlawful condition to the instruction, that he find his own way home, the instruction had been unreasonable.  Mr Maas was accordingly entitled to raise absence of those measures as a defence to a charge of insubordination.

In light of this judgment, when an employer requires an employee to work beyond 18h00, the employer needs to assess whether it is safe for an employee to commute on the available transport to get to his or her place of residence. Employers who engage employees on night work should ensure, inter alia, that employees are able to obtain safe transportation between their places of residence and their workplace even if an employee does not regularly work night shift and even if the most part of the employee’s shift is before 18h00.  The employee cannot be compelled to work beyond 18h00 in circumstances where the employer does not ensure that transport is available between the workplace and the employee’s place of residence.  A further point to note is that the provisions regulating night work apply regardless of the employee’s gender, geographical location, whether it is light or dark at 18h00 or 06h00, and whether the employee lives in a dangerous area or one that is generally considered to be a safe area.

Written by Siphamandla Dube, associate, Fasken Martineau