Transportation of employees

The availability of safe public transportation for employees working beyond ordinary working hours, is a critical aspect of ensuring workplace safety and compliance with regulatory frameworks.   This is just one of the many principles we take away when looking at the Labour Appeal Court (LAC) judgment of TFD Network Africa (Pty) Ltd v Singh NO & Others [2017] 4 BLLR 377 (LAC). In this judgement the LAC sheds light on the obligations of employers regarding transportation for employees required to work overtime or night shifts.

Basic Conditions of Employment Act

Under the Basic Conditions of Employment Act (BCEA), specifically Section 17(2)(b), employers can only allow and/or require employees to work night work if transport is available between the workplace and an employee’s place of residence. Night work in terms of the BCEA is work which extends beyond 18h00 and concludes before 06h00 the following day. This provision is not limited to regular night shift workers but extends to any employee required to work beyond these hours, including overtime.

The BCEA also makes provision for the Code of Good Practice on the Arrangement of Working Time, which further provides that employers who engage employees on night work should ensure, among others, that employees are able to obtain safe, affordable transportation between their places of residence and their workplace.

The LAC judgement

The LAC judgement of TFD Network Africa (Pty) Ltd v Singh NO & Others highlighted the importance thereof that an employer must ensure that transport is available, and that the employer must consider the safety of employees, especially in potentially hazardous situations such as commuting late at night. The LAC ruled that an employer cannot unreasonably expect an employee to find their own way home after working late, even if it involves overtime beyond normal working hours. The Court further also indicated that an employee is entitled to raise the absence of these measures as a defence to a charge of failing to perform night work, or disobeying an instruction to perform night work, where these measures are not in place.

In practical terms…

In practical terms, ensuring compliance involves several key steps for employers:

• Firstly, it requires a thorough review of existing policies to ensure they align with legal requirements under the BCEA/relevant Bargaining council’s collective agreement, regarding the provision of transportation.
• Secondly, conducting regular risk assessments is essential to evaluate the safety of transport options available to employees, especially in areas prone to security risks or lacking adequate public transport infrastructure.
• Thirdly, engaging in consultations with employees helps to understand their commuting challenges and preferences, which informs transportation arrangements that prioritize both safety and convenience.
• Finally, it is crucial to clearly document transport arrangements and communicate these effectively to employees to ensure transparency and understanding of their rights and entitlements.

Conclusion

This LAC judgment clarifies several important points:

• The obligation to ensure transport is available is universal and not contingent on an employee constantly working night shifts; it applies whenever work extends beyond 18:00, regardless of shift patterns or overtime agreements.
• Employers must thoroughly assess the safety of the transportation that is available, or which they provide, ensuring it adequately protects employees during their commute. This includes considering the geographic location, safety of routes and the specific circumstances of each employee.

By adhering to these obligations, employers not only uphold legal compliance but also prioritise the health, safety, and well-being of their workforce which promotes a supportive and compliant workplace environment.

This article is intended to be a brief and general overview of some of the complexities of modern work arrangements that employers need to consider when scheduling shifts and night work. For advice, please contact the LWO on 0861 101 828.

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