One of the challenges faced by employers is the use of personal cellphones by employees during working hours. This is particularly problematic when the use of personal cellphones at work poses a risk to health and safety.  This was the set of circumstances that was being dealt with in the CCMA arbitration hearing in NUMSA obo Nyamande, C. J. v National Glass (GAEK1922-17).

The facts in this case were quite simple.  The employer was a supplier of glass and aluminum products.  The employer was a warehouse assistant, whose duties included the driving of the forklift truck.  The employee was charged with “health and safety, on 23 January 2017, you were caught by your warehouse manager, Wesley Palm, talking on your cellphone whilst operating the forklift as seen in (the below) footage”.

According to the employer, they had a prior progressive discipline to remedy the conduct of the employee regarding health and safety requirements.  This had included counseling for failing to wear safety glasses, sitting on the front forks of a forklift being driven by a colleague, and having had an accident in a company vehicle, resulting in damage to the vehicle of approximately R42 000.00.

The employer submitted that the employee was well aware of the health and safety rules, as these had been encapsulated in the employee’s contract of employment.  The hearing was conducted by way of a teleconference as the employer’s head office was located out of town.  The employee was represented by a shop steward at the hearing, who did not object to the hearing being conducted by way of a teleconference.

The employee pleaded guilty to the allegation in question at the disciplinary hearing, presented mitigating factors as to why he had spoken on his cellphone whilst driving the forklift truck.  In this regard, he submitted that he had received a number of missed calls from his mother and he was anxious to establish the reason for these calls.

In analyzing the evidence, the Commissioner held that there was no evidence to indicate that the employee was adversely affected by the fact that the hearing was conducted via telephone conference.  No objection had been lodged at the time regarding the telephone conferencing of the hearing.  In this regard, the Commissioner, in the arbitration award, noted that, “the outcome of the hearing would have been the same, as the applicant had admitted to using his cellphone whilst operating a forklift”.  The dismissal of the employee was therefore held to have been procedurally fair.

In regards the substantive fairness of the dismissal, it was not in dispute that the applicant spoke on his cellphone whilst operating the forklift.  Evidence had been led by the employer to show that the employee was aware of the rule related to speaking on cellphones whilst driving a forklift; this had been addressed on both his employment contract and the employer’s disciplinary code, both of which had been signed by the employee.

It was noted that the employee did not “endanger anyone or himself when he spoke on his cellphone whilst operating the forklift”.  The Commissioner noted that the employee had “denied that he was aware of the rule related to safety issue”. The arbitration award held that the employee had been found guilty of the charge, and then turned itself to an assessment of whether dismissal was an appropriate sanction for contravention of the rule in question.

The arbitration award further held that the employee “deliberately broke a rule that he was aware of and by virtue of the fact that the employee had a prevailing final written warning for related safety matters at the time he was found guilty of driving the forklift truck whilst talking on his cellphone “no other disciplinary action could be taken other than to dismiss” the employee.  It was further noted that the applicant’s disciplinary record all related to the transgression of safety rules, and the employee “was a serial transgressor of safety rules”.  To make matters worse “the (employee) was not remorseful”.

Employee usage of personal cell phones during working hours hampers productivity and, as evident in this case, can compromise safety.