In its recent decision in Organisation Undoing Tax Abuse v Minister of Transport (CCT 19/22), the Constitutional Court upheld the constitutionality of important provisions of the Administrative Adjudication of Road Traffic Offences Act, 1998 ("AARTO").
The implementation of AARTO by the Department of Transport is likely to create a myriad of employment-related issues, particularly where employees are engaged as drivers or are expected to have a valid driving licence or professional permit during the course of the employment relationship.
AARTO was promulgated to improve the quality of traffic management and safety by creating a single national administrative system of road traffic regulation to replace the previous dispensation that sought to deal with road traffic offences under the Criminal Procedure Act, 1977. The system is designed to hold motorists and operators accountable for traffic violations or road infringements through a point demerit system which could lead to the suspension and cancellation of driving licences, professional permits and operator cards.
Section 25 of AARTO provides for the possible disqualification from driving a motor vehicle of a person who incurs demerit points which, when added to the points previously recorded against that person, in the National Contraventions Register exceed the total contemplated in section 29 of AARTO. The disqualification kicks in 32 days after the excess points have been incurred by a person committing a violation. The disqualification period is determined on the basis of a formula that equals, in months, the number of points by which the total referred to in section 29 (d) of AARTO is exceeded, multiplied by three (or such other number as may be prescribed by the Minister). Section 27 of the AARTO also provides for the drastic prospect of cancellation of a driving licence card, professional driving permit or operator card in the case of serial offenders who rack up successive disqualifications under the Act. A person who is disqualified may not operate a vehicle or apply for a driving licence, professional driving permit or operator card during the disqualification period.
The rollout of AARTO will therefore, by design, require employers seeking to employ persons who are required to have valid driving licences or professional permits for the purposes of their employment to exercise caution when advertising and recruiting for these positions. At the same time, an employee being interviewed for any position requiring a valid driving licence or permit will likely be expected to make a full disclosure of any demerits, actual or pending disqualifications or cancellations under AARTO. A failure to do so may result in dismissal upon discovery of non-disclosure.
Notably, going forward, it appears that contractually binding offers of employment may have to be reconfigured to make the possession and maintenance, at all times, of a valid driving licence or permit peremptory.
Employers may also have to consider reworking aspects of existing disciplinary and incapacity policies and procedures to address the impact of situations of employee demerit, disqualification or cancellation arising in the context of the employment relationship.
Important questions arise as to what an employer's approach should be if an employee, through the demerit process, has their licence or permit suspended or cancelled. Should this be treated as misconduct on the basis that an employee is under a duty to maintain a valid licence or permit and that any conduct that places this obligation at risk or results in disqualification or cancellation is a breach of a workplace rule? In fact, it begs the question as to whether any infringement by an employee that results in demerit points, whether this occurs during working time or not, may not have to be treated as misconduct.
In addition, non-disclosure (or even delayed disclosure) of demerit points accrued, disqualifications or cancellations could, it seems, be classified as forms of misconduct by employees.
Interestingly, in terms of section 33(2) of AARTO:
"Any person who employs a person for the purposes of driving a motor vehicle may, with the written permission of such employee granted in the prescribed manner, ascertain the demerit points position of such employee." from the National Road Traffic Offences Register or at the office of any local registering authority or driving licence testing centre".
It is apparent that this verification process cannot be undertaken by an employer before an individual is in fact an actual "employee" and in cases of an employment relationship "without the permission of the "employee". As a result, it is conceivable that both actual and would-be employers may resort to making it mandatory for employees to provide this consent, and that a failure by an employee or prospective employee to oblige may result in a prospective employee being excluded from consideration for an appointment and existing employees being disciplined for refusing to provide permission upon request.
Another possibility is for employees, who have been disqualified or subjected to cancellation of their drivers licences or permits to be dealt with on the basis of incapacity as the employee has been rendered functionally unable to continue performing in the appointed position. However, when it comes to incapacity management, it is unclear how employers would go about reasonably accommodating employees who have had their driving licenses suspended or cancelled
There is also potential scope for treating this as a ground for retrenchment (on the basis of non-fault), particularly where an employee, for example, is disqualified or has their license or permit cancelled for infractions that occurred before employment with the current employer or where the infringement occurred while the employee was off duty or operating a vehicle in a private capacity.
In light of this decision, employers are encouraged to implement a policy that highlights the essence of AARTO and the AARTO Amendment Act so as to ensure that employees are aware of the ramifications that could follow in the event that they offend against the provisions of AARTO.
Reviewed by Irvin Lawrence, an executive in ENSafrica's Employment practice.
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