21/01/2025
FIRED FOR USE OF CELLPHONE AT WORK
The charges related to events on 27 and 28 November 2020 when Mr Mostert (applicant) allegedly used his personal cell phone for private purposes whilst working with machines. The applicant was in fact injured whilst working on his machine on 28 November, though the machine was not in motion on that occasion. Mostert seeks to review and set aside the arbitration award in which the arbitrator upheld the substantive fairness of the dismissal of the applicant.
The arbitrator noted that Mostert was guilty of serious misconduct. Moreover, Mostert had deliberately refused to comply on more than one occasion. It concerned the arbitrator that Mostert was still arguing that talking on the phone or listening to music on it was not unsafe. Mostert admits that on 27 November he was talking on his phone while working, but there was no accident on that occasion. When he had the accident on 28 November he was working while talking on his phone, but his machine was not in motion. The response of the company was that the critical principle is that when a call is taken at work, the employee is expected to switch off the machine and move away from it. Mr Roodman was the manager of the engineering division of the business in Bredasdorp. Roodman’s commentary on the video of the incident on 28 October 2024 was that Mostert was working on the stationary machine with his left hand instead of his right, though it appeared the accident occurred shortly after Mostert put the phone down. Based on his experience of 17 years’ as a fitter and turner, Mostert defended his action of trying to adjust the machine while holding his phone in his hand because he was able to use his discretion to assess the risk of doing so. See paras [17]-[19].
On 27 October, Mostert repeatedly was on the phone while his machine was running, so it was not as if he had flouted the rule only on one exceptional occasion that day. Regarding the 28 October accident, it was clear Mostert believed that because he was an experienced artisan with considerable experience, he was in a position to judge when it was acceptable to flout safety rules and that he was entitled to exercise his discretion in that regard. He did not acknowledge any wrongdoing or remissness on his part concerning his non-compliance with the normal safety procedures. Remedial steps were unlikely to change his attitude about him being best placed to decide when a safety practice could be ignored, bearing in mind his lengthy experience which ought to have instilled a more cautious approach to safety matters. The review application is dismissed.
Mostert v Overberg Agri-Bedrywe (Pty) Ltd (C113/2022) [2025] ZALCCT 4 (20 January 2025)
