AARTO – Coming for an employee near you
By now, most of us are aware that AARTO stands for the Administrative Adjudication of Road Traffic Offences Act 1998 (Act 46 of 1998) – as amended. The Act is intended to provide an effective, efficient procedure for the adjudication of traffic infringements; including the issue of demerit points leading to the automatic suspension of driving licences, professional driving permits, operator cards or cross-border permits.
That’s right, the automatic suspension of driving licences, and so on. And the affected driver could be your long-haul truck driver, your salesman, a manager entitled to drive company vehicles, a pizza delivery man, and many more.
This article deals purely with the outcome of such an event upon the employer, the matter of infringement notices, payment of fines, nominating drivers, representation letters and so on, will be dealt with in a separate article.
First of all, the issue of demerit points. These currently range from one to six, depending on the severity of the infringement. For instance, an unlicensed vehicle, skipping a stop sign would be one demerit; driving without a licence would be four demerits; driving at 140km/h in a 100km/h zone would be six demerits.
Until, and including, twelve points all is reasonably well, albeit worrying. After twelve points the driver is automatically suspended for three months for each demerit point in excess of twelve. For instance, thirteen demerits would be a three-month suspension; fifteen demerits nine months.
Automatic suspension. No court orders. The driver must immediately hand in any driving licence, professional driving permit, operating licence or cross-border permit to the issuing authority for retention by the authority. Upon expiry of the disqualification period, the driver may apply for the return of the said documents. The wording suggests application may only be made on expiry of the disqualification period, not before, and there is no indication as to how long that may take. The actual disqualification period could be longer than actually stated.
If your employee is required to drive transport for your company, and is suspended, this will affect your business. The obvious criminal and insurance issues aside, the employee is legally incapable of driving, but still employed.
You, the employer, need to ensure certain conditions are outlined in a policy statement or, preferably, letters of appointment. (Covered in the next article).
Section 17(5) of the Act states, “The owner or operator of a motor vehicle who permits any person to drive such vehicle or otherwise to exercise any control over such vehicle, without having ascertained the full names, acceptable identification and residential and postal address of such person is guilty of an offence and liable upon conviction to a fine or imprisonment for a period not exceeding one year or to both a fine and such imprisonment.”
- Obviously, the first requirement is to ensure such details are always available and to ensure the details remain valid; for instance, residential and postal addresses.
- Applications for new positions, where driving will be an inherent part of the duties, must be checked for demerit points. You do not want to employ a driver on 12 demerit points! The applicant employee must authorise the company in writing, and in the prescribed manner, in terms of section 33(1)(2) of the Act to ascertain the demerit points of such applicant employee from the office of any issuing authority, registering authority or driving licence testing centre.
- Any probationer or full-time employee must also provide such authority.
- Employees must be aware that regular checks, as above, will be undertaken but they are required to disclose any demerit points immediately, whether issued in the course of their employment or in their private capacity, to the employer.
- Where demerit points reach a certain figure, for example, eight points, the employee must be advised he or she is in danger of being suspended and the effect on the employment relationship should that occur.
- A clause dealing with the process and potential outcome where an employee is suspended from driving. This could be dismissal or such other fitting alternatives that may apply. For instance, a salesperson might elect to Uber to clients at his or her own expense.
It should go without saying, but employers must ensure they do not encourage employees to break the law (“This package must be delivered as fast as possible”) as that would be a potential defence at a disciplinary process.
Article written by Graham Nicholls