The Commission for Conciliation, Mediation and Arbitration (CCMA). Picture: Oupa Mokoena
A farm worker landed in hot water when he used his cellphone while driving a tractor on a farm, which resulted in him being fired -- a sanction which the CCMA found was too harsh.
But unhappy with the CCMA’s ruling that he had to be reinstated, his employer, Wiggill Farm, turned to the Labour Court in Johannesburg, where it was argued that the tractor driver infringed the road traffic rules and thus deserved to be punished.
But on the day that he was caught using his phone, the driver Vurayayi Mtombe was driving around on the farm.
While he did admit to his employer that he was speaking on the phone at the time, he later claimed that he was only looking at the device to see what the time was.
The farm asked the Labour Court to review and set aside the arbitration award of the commissioner, in which it was found that the dismissal of Mtombe was substantively unfair and ordered his reinstatement with back-pay.
In January last year Clifford Wiggill, while doing his normal checks on the farm, passed Mtombe and saw him using his cellphone while operating the tractor. He confronted Mtombe, who apologised for the incident.
Mtombe was, pursuant to the incident, notified to attend a disciplinary hearing where he was charged with various counts of gross misconduct, stemming from the same incident.
He was charged with gross misconduct for the non-compliance with the cellphone usage policy, by using a cellphone while operating a vehicle
He was also charged with placing the farming company asset as well as placing his own and other fellow employees’ lives at risk.
A disciplinary hearing was convened and Mtombe was dismissed, after pleading guilty to the charges.
He challenged his dismissal at the CCMA, and the commissioner found his dismissal to have been substantively unfair and ordered his reinstatement with back-pay.
Wiggill, meanwhile, testified that Mtombe was made aware of the rules, and that he signed it.
He said that the traffic rules state that nobody was allowed to operate a vehicle while using a cellphone. He confirmed that Mtombe was not conveying any employees on the day of the incident, but that he was pulling a trailer.
In his evidence before the commissioner, Mtombe did not deny using his cellphone on the day of the incident.
He explained, however, that he was using it to check the time. He pleaded guilty because he was scared, he said.
The commissioner found that Wiggill did not provide any workplace rule that prohibits the employees from using phones while driving and that he only relied on the road traffic rule, which prohibits motorists to use cellphones while driving.
The commissioner said this rule prohibits a person from using a communication device driving on a public road and not a farm.
Mtombe also, during his evidence, claimed that his employer does phone him now and then while driving in order to give instructions. Wiggill did not dispute this testimony.
The commissioner said that the employer failed to show if there was a valid and reasonable rule at the workplace.
In relation to the claim that Mtombe placed the respondent’s employees and property at risk, the commissioner said it is not certain how Mtombe did this because there was no evidence of any accident caused.
The Labour Court meanwhile said whether or not the specific regulation (of not speaking on a cellphone while driving) applies to operating a vehicle on a farm, is immaterial to the question whether an employer can require compliance with such a rule within its premises.
“An employer is well within its rights to establish rules that are fair and reasonable and to expect compliance. There is nothing unreasonable in an employer introducing a rule such as the one it contends was breached by Mtombe.”
The Labour Court further said that there would have been no need for Mtombe to have offered an apology, if he did not appreciate his wrongdoing. The court, however, agreed that the dismissal was unfair.
It said the situation could have been addressed without such a drastic measure, as a written warning would have sufficed.
The court confirmed that Mtombe had to be reinstated, but ordered that this had to be coupled with a written warning.
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Pretoria News
zelda.venter@inl.co.za
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