Labour Court upholds dismissal over cellphone use in heavy machinery operations
An employee’s Labour Court bid has failed after he was dismissed from his job at Overberg Agri-Bedrywe due to using his cellphone while operating heavy machinery, which breached the company’s safety policies.
The dismissed employee, who argued that his dismissal was unfair, was a qualified fitter and turner with 17 years’ experience but was dismissed during February 2021 after working at the agri business for about 20 months.
His dismissal occurred after he was placed on light duty due to an injury sustained at work, during which he allegedly used his personal cellphone for private purposes while operating running machinery.
Due to ignoring the company’s safety policies, the former employer fired him for failing to comply with standards, rules and regulations related to safety and a breach of trust.
In a similar case last year, a quality controller at Eskom’s Kusile Power Station was fired after he breached Eskom’s cardinal rule by handling or using his cellphone while driving a vehicle on site.
During those proceedings, an environmental health and safety officer testified about the induction of employees on safety issues, which covered aspects including the rules on using a cellphone.
In the recent judgment, the judge said: “In relation to the existence of the rule and (the employee’s) knowledge of it, the arbitrator was satisfied there was a rule in the workplace forbidding the use of phones for calls or listening to music whilst operating machinery, which (employee) was aware of. His finding was based on various evidence.
“There was documentary evidence of a verbal warning issued by the employee’s superior concerning unsafe cell phone use, and that he had attended safety talk meeting eight months prior to the events leading to his dismissal at which the use of cell phones had been discussed. He also held that, as the employee was a fitter and turner with 17 years’ experience, he ought to have known his conduct created unsafe working conditions.”
Evidence had shown that, on at least two occasions, the dismissed employee was speaking on a cellphone call while operating on a running machine.
Video footage also showed he was on cellphone calls while operating on his machine on both days in question. The man admitted listening to music on his phone while operating his machine.
The judgment noted: “On 21 Feb 2020, all employees were placed on terms regarding unsafe cellphone use, and he continued to ignore safety rules resulting in an oral warning on 14 October 2020, which was recorded in his supervisor’s diary. His refusal to remove his wedding ring despite knowing it was contrary to the rules demonstrated his disdain for compliance. It concerned the arbitrator that the employee was still arguing that talking on the phone or listening to music on it was not unsafe.
“This tended to show he would breach the rules again in the future. Given that the employee showed no regret for his actions, the employer was entitled to assume trust was destroyed. In the result, the arbitrator found his dismissal was justified,” the judgment read.
The man sustained injury on the machine 10 seconds after ending a phone call but kept wearing his earphones through which he listened to music. He attempted to apply greater force to dislodge a jammed component.
“When he forcibly dislodged it, the tommy bar he was using slipped from his left hand. His right hand then caught on the gear levers of the machine, tearing ligaments in his smallest finger,” the judgment read.
chevon.booysen@inl.co.za