Using a cell phone has become so accepted that employees easily forget or ignore the fact that their use at work may not be approved or allowed by the employer. However, failing to adhere to employer policies on cell phone use could potentially have serious consequences for an employee.

In the recent Labour Court judgment of Mostert v Overberg Agri-Bedrywe (Pty) Ltd (C113/2022) [2025] ZALCCT 4 (20 January 2025), the Court had to consider whether the dismissal of an employee for failing to comply with safety rules by using his cell phone while operating machinery was justified.

The employee faced three disciplinary charges, one of which related to a failure to comply with safety standards, rules and regulations. The employee had to respond to an allegation that he had breached a workplace rule prohibiting forbidding the use of phones for calls or listening to music whilst operating machinery. It was alleged that the employee’s failure to adhere to the rules resulted in a hand injury and, consequently, the company losing approximately R6000.00 per day. 

The employee was found guilty and subsequently dismissed. Dissatisfied with the outcome, he referred an unfair dismissal dispute to the CCMA, which upheld the dismissal. Still aggrieved, the employee (“Mr Mostert”) approached the Labour Court, seeking a review and reversal of the CCMA’s arbitration award. 

The primary grounds for review were, amongst other things, that the arbitrator had failed to consider the following:

• Whether the rule had been communicated to him or whether he ought to have been aware of it and whether the risk of dismissal for a first offence had been communicated to him.
• That urgent calls could be answered but private calls should be ended, and the employee should get back to work. 
• The disciplinary code only recommended a final written warning for a first offence.

The Labour Court considered various issues during its adjudication of the review application. The first was whether a rule to the effect that an employee was required to switch off machinery while using a cell phone had been introduced. The court found that the employee could not refute the overwhelming evidence that the use of a cell phone at work had been discussed at several meetings which the employee had been part of, and the employee had attended a safety talk meeting before his dismissal at which the use of a cell phone had been discussed. The court found that there was a rational basis for the arbitrator to conclude that the use of a cell phone while working on machinery was prohibited, except that where calls were received, they could be answered provided the artisan first switched off the machine and stood away from it.
 
The second issue was in respect of the employee’s argument that he had just ended a call and was only listening to music, when the accident occurred. His machine was stationary at the time. The court held that it was not untenable 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 required significant effort.” The court further held that, “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 issue that the court had to determine was whether the dismissal was justified for such conduct, considering that the employer’s disciplinary code suggested that a final written warning should have been issued. The court ruled that the decision to uphold the dismissal was reasonable. 

In upholding the reasonableness of the award, the Labour Court considered the fact that the employee had repeatedly used his cell phone while operating machines. Furthermore, the employer had previously warned its employees of the safety risks associated with using cell phones. 

Accordingly, the dismissal was found to be fair and a strong warning to employees to, in this age of technology, pay heed to health and safety regulations and employer’s rules on the  use of  technology tools in the workplace for private purposes. 


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