AARTO will work as follows: each traffic violation has been allocated a certain number of demerit points. If you are fined you lose points. If the number of points that a driver loses exceeds 12, then the driver is disqualified from driving for the number of months equal to the number of points by which 12 is exceeded.
In terms of labour law, what happens then?
What can an organisation do if its commercial drivers are suddenly unable to fulfil their employment requirements? Does losing a driver’s licence mean waving goodbye to the job?
The guidelines that follow can be applied to staff who are required to drive as part of their job function, you may be surprised to discover just how many employees it will affect, for example, sales representatives, managers attending work related meetings, collection and delivery personnel, CFOs or taxi drivers.
Include it in contracts
If the job is to be a driver, then it is a requirement of the job to have a valid drivers licence. Do your Employment Contracts specify this?
What is important is that you must state a valid driver’s licence is an inherent requirement for a position and the loss of licence will result in termination of employment.
However, only if having a licence is a requirement of the position, and if it can be shown that it would be unreasonable for the employer to have to wait the number of months for which a licence has been suspended. If it is only a month, and the employee has a month's leave due, then he must take his leave.
If your Employment Contracts do not specify this, it is recommended that you include this for new Employment Contracts and detail the consequences of losing a valid driver’s licence. For existing drivers, relevant staff should be consulted on the issue and new clauses be added as an addendum to existing Employment Contracts.
It is also recommended that a company’s existing disciplinary codes be amended to reflect its position regarding a valid driver’s licence and that staff be consulted on the issue prior to the amendment of existing Disciplinary Codes.
In contractual terms, a driver who is required to have a valid Drivers Licence in order to perform his or her job will be deemed to have terminated that contract because of his or her impossibility to perform the function.
However, Labour Law is based on equity and, therefore, fairness will prevail. What is “fair” in the circumstances? The issue will need to be determined by the CCMA and Bargaining Councils and, ultimately, by the Labour Court. For example, if a driver is requested to perform an unreasonable instruction by an Employer which might, for example, influence the driver to speed or park illegally, etc. so as to meet unreasonable deadlines, it would not be deemed to be “fair” to dismiss him or her.
It is advised that Employers make it clear in advance that in terms of the new law, any traffic offence committed whilst performing work duties will be deemed to constitute “misconduct” and will result in disciplinary action being taken against an offender.
To ensure compliance from a company’s side, the employer must ensure that all drivers’ licenses are verified with the authorities. Then assess all the drivers and do specific training based on the outcome of the assessment and the specifications of the traffic laws and ensure that they are made conversant with the new point system. Ensure that all processes are documented, dated, signed and filed.
Then, if the driver transgresses and her license is suspended, the employer has done all it can to ensure compliance from its side.
There are a number of danger lights flashing for Companies with many drivers and or large fleets of vehicles.