You can be fired for using your phone at work in South Africa

South Africans can be dismissed for using their phones at work, but employers have to be able to show that their policies and rules are reasonable and valid.

Looking at three recent decisions at the Labour Court, Samantha Bonato and Sanele Zulu from ENS looked at the reasonableness and validity of rules prohibiting the use of cell phones.

Firstly, in Mostert v Overberg Agri-Bedrywe (Pty) Ltd, an employee was called upon to face three disciplinary charges, one of them being a failure to comply with safety rules and standards.

It was based on the allegation that the employee had breached a rule, which stated that employees must switch off a machine they were using when making or taking calls.

It was alleged that the failure to comply with the rule had resulted in the employee injuring their 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, with the Court looking at three issues:

The first was whether the employer had introduced a rule to the effect that an employee was required to switch off machinery whilst utilising a cell phone.

The Court said that the employee could not have refuted the evidence that the use of cell phones at work had been discussed at several meetings.

Although the employee was successful in arguing that the injury was prompted upon restarting his machine after a call had been terminated, the Court noted that he still had his phone connected to his earphones, which limited his movement and resulted in an injury.

The third issue was whether the dismissal was justified on the basis that the employer’s code of conduct required a final written warning. He also challenges the allegation that he had received an oral warning.

However, the court found that, even if his argument was accepted, the decision that dismissal was justified was not unreasonable.

When dealing with reasonableness, the Court found that the employee had used his cell phone whilst operating machines on numerous previous occasions.

It also noted that the use of a phone was linked to the injury and that the employer had previously warned its employees about the safety risks of using a cell phone.

A strict approach was also adopted in the Association of Mineworkers and Construction Workers Union obo Motswadi v Commission for Conciliation, Mediation and Arbitration and Others.

The employee was dismissed for breaching a rule prohibiting the possession of contraband, including cell phones, in demarcated non-contraband areas.

A commissioner upheld the dismissal due to the employee being aware that his misconduct was serious and could have resulted in an explosion at the mine.

The Labour Court also upheld the award and emphasised the point that the purpose of the rule was to ensure compliance with safety requirements and designed to avoid injuries in a seriously dangerous industry.

The employee was also 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 be regarded as being too severe a sanction, the commissioner’s decision in this regard was not unreasonable, given the health and safety considerations,” said the ENS experts.

Not always the case

In Wiggil Farming (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others, where an employee was dismissed for using his phone while driving a tractor.

Although a commissioner found the dismissal had been unfair, the Labour Court, on review, accepted that an employer is within its rights to introduce safety rules and expect compliance from employees.

That said, the Court upheld the commissioner’s finding that the dismissal was unfair.

Despite the employee’s conduct constituting misconduct, it did not constitute gross misconduct.

It also found that the misconduct could have been easily corrected via the use of progressive discipline.

Harm to third parties due to the misconduct was also minimal, as 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.  

“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,” said the ENS experts.

“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.”