The implementation of the Administrative Adjudication of Road Traffic Offences Act (AARTO) 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, says law firm ENSafrica.
In July, the Constitutional Court upheld the constitutionality of important provisions of AARTO that were challenged by the Organisation Undoing Tax Abuse.
Following the decision, Minister of Transport Sindisiwe Chikunga said motorists can expect AARTO to be fully implemented nationwide on 1 July 2024.
The AARTO Act, which was passed by Parliament in 1998, will introduce a demerit system in terms of which motorists who break traffic laws will lose points and, once they have lost a certain number of points, will have their driving licences suspended or cancelled.
Kara Barnard, a senior associate in ENSafrica’s employment practice, says the roll-out of AARTO will require employers seeking to employ persons who must 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,” she says.
It also seems 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, Barnard says.
Treated as misconduct?
Employers may 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, Barnard says.
“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?”
Barnard says this raises the question whether any infringement by an employee that results in demerit points, whether or not this occurs during work hours, may not have to be treated as misconduct.
In addition, non-disclosure or delayed disclosure of demerit points accrued, disqualifications, or cancellations could, it seems, be classified as forms of misconduct by employees.
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 “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 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.
Or is it incapacity?
Another possibility is for employees who have been disqualified or subjected to cancellation of their driver’s licences or permits to be dealt with based on incapacity, because the employee has been rendered functionally unable to continue performing in the appointed position, Barnard says.
However, when it comes to incapacity management, it is unclear how employers would go about reasonably accommodating employees who have had their driving licences suspended or cancelled.
There is also potential scope for treating this as a ground for retrenchment (based on non-fault), particularly where an employee, for example, is disqualified or has their licence 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.
Barnard says employers should implement a policy that highlights the essence of AARTO and the AARTO Amendment Act to ensure that employees are aware of the ramifications if they offend against the provisions of AARTO.
Disclaimer: The information in this article does not constitute legal advice that is appropriate to every individual’s needs and circumstances.
