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[2025] ZALCCT 4
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Mostert v Overberg Agri-Bedrywe (Pty) Ltd (C113/2022) [2025] ZALCCT 4 (20 January 2025)
FLYNOTES:
LABOUR – Dismissal –
Cellphone use –
While working with machinery –
Charges relate to events on two days – Employee injured on
second day – Using
cellphone for calls and for listening to
music – Arbitrator upheld substantive fairness of dismissal
– Recalcitrant
attitude towards safety compliance –
Employee believed that because he was an experienced artisan he
could judge when
it was acceptable to flout safety rules –
Not acknowledging any wrongdoing concerning his non-compliance
with normal
safety procedures – Review application
dismissed.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of
interest to other judges
Case
no: C 113/2022
In
the matter between:
ROAN
MOSTERT
First
Applicant
and
OVERBERG
AGRI-BEDRYWE (PTY) LTD
First Respondent
MERVIN
JOHNSON (
N.O.
)
Second Respondent
THE
METAL AND ENGINEERING BARGAINING COUNCIL
Third
Respondent
Heard
:
17 April 2024
Delivered
:
20 January 2025
Summary:
(Review application – Unfair
dismissal for misconduct – protocol for use of cell phone while
operating machinery –
rule established – employee’s
awareness - absence of previous final written warning - experienced
artisan – phone
causing distraction or impeding safe work –
employee believing he could exercise his discretion on safety issues
–
award not reviewable on the basis of reasonableness)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an application to review and set aside an arbitration award
in which the arbitrator upheld the substantive fairness
of the
dismissal of the applicant. The applicant, Mr R Mostert, seeks to set
aside the finding that his dismissal was substantively
fair.
[2]
The applicant was dismissed on 12 February 2021, after working for
the first respondent (‘OAB’) for about
20 months. He was
a qualified fitter and turner with 17 years’ experience. He was
found guilty of three charges, namely:
2.1 Charge 1:
He failed to comply with standards, rules and regulations related to
safety;
2.2 Charge 2.
Demonstrating behaviour of bad client service that could potentially
damage the good name of the respondent,
and
2.3 Charge 3:
Irretrievable breach of the trust relationship between the employer
and employee.
[3]
The charges related to events on 27 and 28 November 2020 when Mostert
allegedly used his personal cell phone for private
purposes whilst
working with machines that were running. The applicant was in fact
injured whilst working on his machine on 28
November, though the
machine was not in motion on that occasion. His injury resulted in
him being placed on light duty. The applicant
disputed that he was
guilty of the charges and, in the alternative, maintained that the
sanction was too harsh in any event.
The arbitrator’s
findings on substantive fairness
[4]
The arbitrator found that since the customer, whom Mostert was
speaking to on his phone while he was working, was aware
that he was
doing so and saw nothing wrong with that, Mostert could not have
brought OAB into disrepute with its customer by doing
so.
Consequently, he acquitted Mostert on the second charge.
[5]
In relation to the existence of the rule and Mostert’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 Mostert was
aware of. His
finding was based on various evidence. There was documentary evidence
of a verbal warning issued by Mostert’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
Mostert was a fitter and turner with
17 years’ experience, he
ought to have known his conduct should have known his actions created
unsafe working conditions.
[6]
On the first charge, the arbitrator concluded that the evidence
showed overwhelmingly that, on 27 and 28 November 2020,
Mostert was
speaking on a cell phone call whilst operating on a running machine.
Video footage also showed he was on cell phone
calls whilst operating
on his machine on both days in question. On 27 November, the machine
was in motion at the time. On his own
version he said he had a
personal emergency situation relating to his family and needed to
converse with his attorney and the police.
This supported the firm’s
version that he was on telephone calls while operating on his
machine. The applicant's action on
the video footage further
corroborated the respondent's version in this regard. Alson, Mostert
testified that calls were answered
whilst working on a running
machine giving further credence to the firm’s version. He also
admitted listening to music on
his phone while operating his machine
and video footage showed him listening to earphones attached to his
phone.
[7]
Overall, the arbitrator found Mostert’s evidence about his
phone usage was inconsistent, whereas the evidence of
Mr F Roodman
(‘Roodman’), the manager of the engineering division of
the business in Bredasdorp, was forthright and
credible, and he had
no reason to lie about the existence of the rules. He concluded
Mostert was guilty of the second charge of
breaching the respondent's
safety rules and regulations.
[8]
Turning to the question of the sanction, the arbitrator noted that
Mostert was guilty of serious misconduct. Moreover,
Mostert had
deliberately refused to comply on more than one occasion. On 21 Feb
2020 all employees were placed on terms regarding
unsafe cell phone
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. Mostert’s refusal to remove his wedding ring despite
knowing it was contrary to the rules
demonstrated his disdain for
compliance. It concerned the arbitrator that Mostert was still
arguing that talking on the phone or
listening to music on it was not
unsafe.
[9]
This tended to show he would breach the rules again in the future.
Given that Mostert showed no regret for his actions,
the employer was
entitled to assume trust was destroyed. In the result, the arbitrator
found Mostert’s dismissal was justified.
The review application
Grounds of review
[10]
The applicant
wishes to review the award on grounds that it is not one that a
reasonable arbitrator could have reached on the evidence.
Essentially
it is what has come to be known as a ‘fact based’ review
where it is the arbitrator’s evaluation
of the evidence which
is subjected to scrutiny. It is now trite that an applicant that
wishes to do this must show that the alleged
error or errors made by
the arbitrator were such that the arbitrator could not have arrived
at their findings if they had not made
those errors. In
Makuleni
v Standard Bank of South Africa Ltd and Others
[1]
the Labour Appeal Court reaffirmed this approach, which was
elaborated on in
Head
of Department of Education v Mofokeng & others
.
[2]
[11]
In brief, the primary grounds of review advanced by Mostert were that
the arbitrator failed to consider:
11.1 evidence
of the employer under cross-examination which effectively conceded
that no misconduct had been committed;
11.2 evidence
of his superior that he had received calls from his superior while he
was working, but he was not reprimanded;
11.3 evidence
that disciplinary action was not consistently applied to other
employees for failing to follow safety
regulations and was
inconsistently applied to him;
11.4 the
disciplinary code only recommended a final written warning for a
first offence;
11.5
Roodman’s testimony that Mostert was only issued with a verbal
warning on 14 October for similar misconduct
because of mitigating
circumstances and accordingly he had never even been issued with a
written warning for the offence;
11.6 the
third charge was not a separate charge but concerned the existence of
aggravating factors;
11.7 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 was communicated, and
11.8 that
urgent calls could be answered, but private calls should be ended and
the employee should get back to work.
[12]
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.
[13]
The employer’s main responses were that:
13.1 Some of the
issues raised by Mostert were irrelevant to the reason for his
dismissal. It did not dispute that employees
were allowed to use
their cell phones at work, but private calls had to be kept to a
minimum. 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.
13.2 It did not
follow from the fact that Roodman phoned him while he was working
that Mostert could continue working on his
machine while he spoke on
the phone. He was expected to switch the machine off. This principle
applied still applied even when
he was given permission to receive
certain urgent personal calls at work. Mr H Pietersen (‘Pietersen’),
the safety
representative in the workshop confirmed this practice.
13.3 No evidence
was produced to substantiate Mostert’s vague allegation that
safety harnesses were not worn by staff
working at heights and they
were not disciplined for that.
13.4 The
disciplinary code envisages that sanctions imposed for an infraction
might be more severe than what the code suggests
and, in Mostert’s
case he had received at least two prior warnings for the same
misconduct.
13.5 The evidence
showed that Mostert had a recalcitrant approach when it came to
following the rule, which warranted the
sanction of dismissal.
Evaluation
[14]
It is true Roodman conceded that there could have been occasions when
he had been with Mostert at his workstation and
when Mostert had
taken out his phone when it rang then muted it, Roodman told him to
answer it first. However, Roodman said such
an instruction never
implied Mostert should continue working while answering the phone. He
was expected to stop working on the
machine and step away from it to
deal with the call. Mostert put it to Roodman that, on one occasion,
Roodman had phoned him, and
he had spoken to him while material was
being cut on his machine, which Roodman must have been aware of
because it was audible.
Roodman’s response was that, if it was
the case that he continued operating the machine, he should not have
done so. Be that
as it may, the evidence of Roodman and Pietersen was
consistent on the existence of a rule that one did not speak on the
phone
without first switching off a machine in operation and standing
aside from it.
[15]
Although Mostert disputed that it had been specifically stipulated
that one could not listen to music on one’s
phone, he could not
seriously refute that when cell phone use had been discussed in the
engineers’ safety talk meeting on
21 February 2020 that it was
clearly explained that cell phones could not be used while working on
machinery, without the principle
being confined only to speaking on
the phone. There was evidence that the prohibition against using cell
phones whilst working
was a topic of discussion during at least two
toolbox meetings, though one took place after the alleged infraction
on 27 and 28
November 2020 for which he was dismissed. In the
circumstances, it cannot be said there was no rational basis for the
arbitrator
to conclude that the use of cell phones while working on
machinery was prohibited, save that if calls were received, the call
could
be answered provided the artisan first switched off the machine
and stood away from it.
[16]
Mostert does not dispute that on 27 November 2020, he spoke on the
phone while working on his machine while it was in
motion but argued
his conduct that he had a serious personal reason to talk on the
phone that day. That he had a good reason to
take personal calls was
not disputed. What the firm objected to, was his failure to switch
off and distance himself from his machine
when he took the calls.
Roodman had shown video material of him doing this on more than one
occasion that day. Roodman pointed
out at one stage how Mostert was
working in a distracted fashion. Mostert disputed that speaking on a
cell phone at work was subject
to any requirement to switch off the
machine, but this was at odds with Roodman and Pietersen’s
evidence.
[17]
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 because he was holding his phone in
his right hand and this is when the accident
occurred, which resulted
in him sustaining serious injury and the company losing work to the
value of approximately R 6000-00 per
day as a result of him being
unable to work. Mostert claimed he had just finished speaking on the
phone and was listening to music
on the headphones attached to his
phone when the accident happened. The accident happened about ten
seconds after the call ended.
Roodman’s response was that
Mostert still had his earphones on, and the length of the earphone
cord attached to the phone
limited the ambit of his movements.
Mostert contended that listening to music on the phone was no
different to conversing with
someone in the workplace and there was
no prohibition against using earphones, but Roodman pointed out that
this still amounted
to using his phone whilst working. Mostert said
that, if it had been unsafe for him to have his phone in his hand and
using his
other hand to loosen the chuck on the machine he would not
have done it adding that everything could not always be done one
hundred
percent by the book and sometimes one had to use one’s
own discretion. In Roodman’s view, if it was difficult to
accomplish
a task within the safety regulations, Mostert should have
phoned him. Although he did not dispute having his phone in his hand
when he commenced the task, Mostert claimed he had just ended a call
and was only listening to music, when the accident occurred.
His
machine was stationary at the time.
[18]
When he gave his evidence in chief, Mostert elaborated further,
saying he had put the cell phone down on the machine
so he would not
be hindered in what he was doing and in order to not to compromise
safety. At the time, he was attempting 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.
[19]
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. It does not
seem to be in
dispute that Immediately before the accident occurred, Mostert had
just put his phone down on the stationary machine,
so it was no
longer in his hand but he was still wearing the earphones which were
connected to the phone. Roodman maintained that
the length of the
earphone cords limited Mostert’s freedom of movement.
[20]
It was not unreasonable to infer from the evidence that on a number
of occasions on 27 October, Mostert had been speaking
on the phone
without switching off his machine. It was also not untenable to
conclude, 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 clearly
required significant effort.. Accordingly, it was a feasible
inference that his phone had indirectly impeded
his efforts to free
the stuck component, thereby constituting a risk factor.
[21]
Mostert is correct that the third charge of destroying the trust
relationship was actually a conclusion to be drawn from
the other
charges. In any event, this is of no relevance in the review because
the arbitrator did not deal with this as a charge,
but correctly
dealt with this when considering the sanction.
[22]
Roodman also testified that there had been another incident in
January 2021 when all staff had been expressly instructed
to remove
jewellery when working but the following day Mostert had to be
reminded to remove his wedding ring, yet had subsequently
carried on
wearing it. This did not form part of the charges but was led as
evidence that Mostert did not heed safety regulations.
Mostert
contested the applicability of the rule to the wearing of a ring.
[23]
In any event, Mostert argued that the sanction of dismissal was a
departure from the code which recommended a final written
warning on
the first occasion, in circumstances where he had not even received a
verbal warning. It is a fair criticism that the
arbitrator should not
have accepted that the oral warning was issued based on the strength
of a diary entry that was not confirmed
by the author. If the
arbitrator had accepted that this meant that it was unfair to dismiss
him for that reason, that might have
been a reasonable decision. But
the question to be decided is whether no reasonable arbitrator could
have concluded that dismissal
was appropriate.
[24]
Although Mostert had no written warning and the oral caution by his
superior was not properly corroborated, there are
factors which
provide support for the arbitrator’s decision that warnings
would not address the problem. Firstly, 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. Secondly, in relation to the 28 October accident, when he
cross-examined Roodman, 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.
Simultaneously, he did not acknowledge any
wrongdoing or remissness
on his part concerning his non-compliance with the normal safety
procedures. If one asks the question
whether remedial steps were
likely to change his attitude about him being best placed to decide
when a safety practice could be
ignored, and bearing in mind his
lengthy experience which ought to have instilled a more cautious
approach to safety matters, it
cannot confidently be said that no
reasonable arbitrator could have concluded that his transgressions,
coupled with his recalcitrant
attitude towards safety compliance,
warranted his dismissal.
[25]
In conclusion, I am satisfied that even if there might have been some
flaws in the arbitrator’s reasoning, they
are not such that the
result would necessarily be different if those faults were corrected.
On the material before the arbitrator
his findings on Mostert’s
guilt on charge one and the fairness of his dismissal, are not ones
no reasonable arbitrator could
have arrived at. Accordingly, the
review application does not succeed.
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant
NF
Rautenbach instructed by CK Attorneys
For
the First Respondent
W
Jacobs from Willem Jacobs and Associates
[1]
(2023) 44 ILJ 1005 (LAC) at paras 3 – 4.
[2]
(2015) 36 ILJ 2802 (LAC) at paras [30] - [33].