The ubiquitous use of cell phones in modern society has meant that employers have, in certain circumstances, deemed it necessary to introduce policies and disciplinary rules regulating their use in the workplace. Of course, the employer must be able to show that these policies and rules are reasonable and valid.
In three recent decisions, the Labour Court considered the reasonableness and validity of rules prohibiting the use of cell phones in situations where the employer sought to justify the rule on the basis of health and safety considerations.
In Mostert v Overberg Agri-Bedrywe (Pty) Ltd, an employee was called upon to face three disciplinary charges. The one of relevance here was a "failure to comply with standards, rules and regulations related to safety". This was based on the allegation that the employee had breached a rule which stated that employees should switch off a machine they were using when making or taking calls. The employer justified this rule on the basis of health and safety considerations. In fact, in this case, it was alleged that the failure to comply with the rule had resulted in the employee injuring his hand. He was found guilty of this disciplinary infraction and dismissed. A commissioner of the Commission for Conciliation, Mediation and Arbitration ("CCMA") upheld the dismissal. The employee then applied to the Labour Court to have the award reviewed and set aside. The Labour Court considered three issues.
The first was whether the employer had actually introduced a rule to the effect that an employee was required to switch off machinery whilst utilising a cell phone. The Court found that the employee could not "seriously refute" the evidence that the use of cell phones at work had been discussed at several meetings in which the employee had been present. The Labour Court found that -
"In the circumstances, it cannot be said there was no rational basis for the arbitrator to conclude that the use of cell phones while working on machinery was prohibited, save that if calls were received, the call could be answered provided the artisan first switched off the machine and stood away from it."
The second dealt with the employee's argument that he had not contravened a rule because he had not been operating his machine when he was on the phone. The incident which appears to have prompted the disciplinary process, namely an injury to his hand, had taken place when he had attempted to restart his machine after a call had been terminated. The Court appears to have accepted that this allegation was correct but nevertheless found that a disciplinary offence had been committed. It stated it had not been untenable for the commissioner to find that -
" ... Mostert would have had more freedom of movement and would not have been using his left hand to free the jammed component if he had not commenced the task while he still had the phone in his right hand and had also set aside the phone, together with the earphones, before turning all his attention to a task that clearly required significant effort.. Accordingly, it was a feasible inference that his phone had indirectly impeded his efforts to free the stuck component, thereby constituting a risk factor".
The third was whether the dismissal was justified for such conduct, this on the basis that the employer's disciplinary code required that a final written warning should have been given. The employee also challenged the allegation that he had received an oral warning. The Court found that, even if this were to be accepted, the decision that dismissal was justified was not unreasonable.
The Labour Court considered the following in upholding the reasonableness of the award:
- The employee had, on numerous previous occasions, used his cell phone whilst operating machines.
- Although the employee was not physically holding his cell phone when he was injured, he had his earphones plugged into his cell phone, which limited his movement and resulted in his injury.
- The employer had previously warned its employees of the safety risks associated with using cell phones. The employee believed that, because he is an experienced artisan, he could use his discretion and flout the employer's safety rules. He did not acknowledge any wrongdoing on his part.
A strict approach was also adopted in Association of Mineworkers and Construction Workers Union obo Motswadi v Commission for Conciliation, Mediation and Arbitration and Others where an employee was dismissed for breaching a rule prohibiting the possession of "contraband" (such as cell phones) in demarcated non-contraband areas. A commissioner upheld the dismissal on the basis that the employee was aware that his misconduct was serious in nature because it could have resulted in an explosion at the mine. On review, the Labour Court upheld the award and emphasised the point that the purpose of the rule was to ensure compliance with safety requirements and was designed to avoid injuries and fatalities in an inherently dangerous industry. The employee was aware of the rule and the impact that a contravention of the rule could have on co-employees and the employer's operations. While the sanction of dismissal could possibly be regarded as being too severe a sanction, the commissioner's decision in this regard was not unreasonable, given the health and safety considerations.
In Wiggil Farming (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others, an employee was dismissed for using his cell phone whilst operating a tractor. A commissioner found that the dismissal had been unfair. On review, the Labour Court accepted that an employer is well within its rights to introduce safety rules and expect compliance with these rules by its employees. However, the Court upheld the commissioner's finding that the dismissal was unfair. It found that, although the employee's conduct constituted misconduct, it did not constitute gross misconduct. In addition, it found that the misconduct could have been easily "corrected" through the application of progressive discipline and that the possibility of harm to third parties arising from the misconduct was minimal, given that the employee was driving a tractor on a farm. The Labour Court ordered that the employee be issued with a written warning valid for six months.
Comment
It is clear from these judgements, and similar judgements in the past, that employers are entitled to implement disciplinary rules and policies related to the use of cell phones in the workplace, where these can, inter alia, be justified on the grounds of health and safety. However, the Wiggil decision also illustrates that a breach of such a policy or rule will not necessarily justify dismissal and that employers will also have to justify why a dismissal for a failure to comply with such a rule or policy is fair.
*Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment practice.
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