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Q?  Can I dismiss an employee whose driver’s licence has been suspended or cancelled?

A. The short answer is yes. However, dismissal is not automatic and threats to that effect should not appear in an employment contract or policy manual. As with any dismissal fair procedures must be followed and dismissal must be for a fair reason. There are two possibilities regarding traffic offences.

The first applies to traffic violations occurring while the employee is driving a Company vehicle or on official business. Any offence (including traffic violations) may be treated as a disciplinary matter, and disciplinary action for misconduct may be applied. Such action may result in dismissal if the offence is serious enough or repeated.

Normal procedures for misconduct apply.

The second option applies when the employee’s licence is suspended or cancelled. The issue is no longer misconduct, but capacity. Whether the traffic violation(s) resulting in suspension or cancelation occurred on or off duty is irrelevant (unless misconduct applies as above). Here, you are not disciplining the employee for the offence, but considering their ability to do their job without a licence. Such a question can only be answered fairly through incapacity proceedings, which are similar to proceedings for medical incapacity.

How long will the employee be unable to drive? Can the employee continue his or her work without driving for that period? Has the employee’s licence been suspended or cancelled before? Can the company accommodate the employee in an alternative position for the length of the suspension/cancelation? If it is unreasonable for the company to accommodate the employee, could suspension without pay be an alternative to dismissal?

These are some of the questions employers will be required to consider during the incapacity process. If driving is all the employee does and an alternative is not available or practical, or if this has happened before with this employee, dismissal may be appropriate.

Q?  How should employers prepare for implementation of the point demerit system for road traffic offences?

A. The point demerit system for road traffic offences is due to be implemented nationwide on 1 April 2016. How should employers prepare?

The policy manual and employee contracts should be updated to take account of the new system.

The onus for ensuring one’s licence is valid and not suspended or cancelled must very clearly rest with the employee. At the same time, it must be clear that employees are required to obey the law at all times and that the company will not request or require employees to break the law. Managers and supervisors must be very clear and should receive specific instructions on this point.

Where an employee is required to have a valid driver’s licence, the employee should also be required to keep the employer informed of all demerit points incurred, irrespective of whether the offence occurred on company business. This allows the employer to be forewarned of potential problems.

The employee should also be contractually obliged to allow the organisation to regularly verify the demerit record of the employee on the National Contravention Register.

Car pool sign outs should include the acknowledgement that, until the car is signed back in, the employee concerned accepts responsibility as the designated driver for any traffic-related offences. And employees who drive their own company-owned vehicles must have a similar acknowledgement in their contract.

Policies should state that any traffic violation occurring while an employee is on official business or driving a Company vehicle will be investigated by the organisation and that, where warranted, disciplinary action may be taken against the employee concerned. This will relate to the extent to which company property was at risk through the employee’s actions or failure to act.

It should also be stated that, should an employee’s licence be suspended or cancelled for any reason, the suitability of the employee for continued employment based on his or her capacity for the job will be investigated, which may result in dismissal for incapacity.

Employers should be aware of the documents required to be completed and the processes to be followed should an AARTO notice be received, particularly with regard to designating a driver of a company-owned vehicle.

Training of staff and managers should also take place and the above requirements should be included in the induction of new employees.

Q? Does an employment contract have to be in writing?

A. The Basic Conditions of Employment Act (BCEA), section 29, requires certain particulars to be given to the employee in writing on commencement of employment.

It does not have to be in the form of a contract, but it is a fairly comprehensive list including details of the employer; the employee’s occupation (or a description of the work); details of remuneration; notice period and details of other relevant documents. Any future changes must also be given to the employee in writing.

However, when disputes arise over the nature of the relationship, requirements of the job or unfair labour practices, the CCMA and labour courts will not restrict themselves to details of written contracts. They will include expectations created, the understanding of the parties, verbal statements made and anything else that may have affected either party’s understanding of the real (not merely the written) contract of employment.

Ian also posts regular articles to the blog page on a variety of people-management issues. Sign up below to receive notifications of new posts by email, or subscribe to the monthly Newsletter.

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