Rene Clifford
HR/IR Consultant: Kwa Zulu Natal
Many companies and businesses throughout South Africa rely heavily on their drivers, sales consultants and managers to operate a vehicle in order to fulfil daily operational requirements. An inherent requirement of the many occupations within companies is the ability to operate a truck, motor vehicle or motorcycle. One needs to bear in mind that in order for employees to operate these forms of transport legally, a valid driver's license is required. The valid driver's license becomes an essential element of the employment contract and the absence of the driver's license presents a major obstacle for employers and employees alike.
What can an employer do in the circumstance wherein an employee is required to be in possession of a valid driver's license but during the course of employment has had the driver's license revoked due to various traffic violations.
Impossibility to perform
In the absence of possession of a driver's license or in the event of the employee informing you as his/her employer that he/she is unable to fulfil his/her duties as a direct result of his/her driver's license been revoked, what options are available to the employer?
The maxim 'lex non cogit ad impossibilia' applies to all contracts, including contracts of employment. If either party becomes permanently unable to perform his or her obligations under the contract, or is unable to perform those obligations for a period that is unreasonable as far as the other party is concerned, the other party is entitled to terminate the contract on the grounds of such non-performance.
The code draws a distinction between temporary absences and absences that endure for a time that is 'unreasonably long in the circumstances'. Dismissal is generally considered inappropriate if the absence is likely to be of a relatively short duration e.g. a three-week suspension of a driver's license. When a period of absence may be deemed 'unreasonably long' is expressly made dependent on the circumstances, including:
- The reasonableness of an employee's absence
- The strategic importance of the employee's job,
- His or her length of service,
- The ease with which the employee can be temporarily replaced,
- The financial capacity of the employer to make arrangements to replace the absent employee,
- The effect of the employee's absence on other employees.
When it is clear that an employee is permanently incapacitated and is unable to renew their driver's license, the employer is not required to retain the employee in service. Based on the employee's inability to perform his/her duties without a valid driver's license, the company may institute incapacity proceedings based on the impossibility to perform the function for which he/she was employed to fulfil e.g. sales representative or driver.
Suspension of a driver license is a supervening impossibility of an employee to render services to the employer. A contract of employment is not automatically terminated by temporary inability to render services to the employer, but it may be terminated if the inability persists. The decision to terminate the services of an employee must be preceded by a fair process. The process must include an investigation to get clarity on the situation of the employee as outlined above, and the employee must be given an opportunity to be heard.
The employer must consider other alternatives short of dismissal, such as employing someone on a temporary basis, especially if the position of the employee is not a key position which would necessitate dismissal after a few days. In the event that a permanent employee has to be engaged where there is no other alternative, the unable employee has to be consulted pursuant to terminating their services for operational requirements in terms of Section 189 of the Labour Relations Act.
An employee who is unable to provide a service is not entitled to be paid in respect of the period of absence.
LabourNet can assist in giving advice on what the most appropriate strategy would be and we can assist our clients to ensure that they follow the correct procedures when dealing with employees that are no longer able to perform the functions for which they have been hired.
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If you have a question for the author about this article or require any other information please email the editor.
For further information on the demerit system refer to the Arrive Alive website or the links below:
On the Arrive Alive website there is a quick guide to AARTO in a Nutshell. The Demerit System will be managed under the Adjudication and Administration of Road Traffic Offences Act [AARTO]. The best information on AARTO is to be found on the AARTO website at www.aarto.co.za
Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advice as to its application in your business or under your specific circumstances. LabourNet will accept no liability if the information is used without first obtaining specific advice from one of our consultants.