Whether we like to admit it or not, the fact is that handling or using a cellular phone while driving a motor vehicle or operating a piece of machinery, is distracting, and can lead to extremely severe consequences including fatal accidents.
Most employers implement a lifesaving or cardinal rule to the effect that persons may not handle or make use of a cellular phone while operating a motor vehicle or other equipment and machinery, either in support of the obligations of employers to implement appropriate measures to ensure the health and safety of employees and other persons who perform work at the workplace, or because of the history of accidents at the particular workplace, or in the relevant industry.
These lifesaving or cardinal rules are typically “zero tolerance” rules, and a first offence usually leads to dismissal, primarily because of the potential fatal and life-changing consequences that flow from incidents or accidents related to these rules.
Despite extensive training on these lifesaving and cardinal rules, and, in many cases, written commitment from stakeholders such as the employees, contractors/service providers and trade unions, employees, service providers and visitors still “take chances”, and handle or make use of cellular phones while driving vehicles and operating machinery and equipment, in workplaces.
It was extremely satisfying to read a recent judgment of the Labour Court, Johannesburg, which reviewed and set aside the award of an arbitrator (of the MEIBC where the dispute had been referred), and upheld the dismissal of an employee of a contractor at Eskom’s Kusile Power Station for “handling” a cellular phone while operating a light delivery vehicle.
In the matter of SBX t/a DB Thermal (a division of DBT (Pty) Ltd) v Nhlapo & Others (JR 1383/19) [2024] ZALCJHB 140 (22 March 2024), the employee of SBX t/a DB Thermal (DBT) was observed handling a cellular phone while operating a light delivery vehicle at Eskom’s Kusile Power Station.
The employee was disciplined, and faced two charges, with the first charge being a breach of Eskom’s cardinal rule regarding the handling or use of cellular phones while operating a vehicle, and the second, that the employee had signed off work performed by another employee of DBT.
On the first charge, the chairperson of the disciplinary enquiry found the employee guilty, and the sanction of dismissal was imposed. The employee challenged the decision, to the MEIBC, which had jurisdiction, and the arbitrator found that, while the employee had breached the cardinal rule, dismissal was not appropriate, and re-instated the employee.
DBT, the employer, took the decision of the arbitrator, on review, to the Labour Court.
The Labour Court reconfirmed key principles including that employers are obliged to implement health and safety rules in the workplace, that a breach of these health and safety rules is material, and that a dismissal would, in most circumstances, be justified. The court also focused on the dissemination and knowledge of the rule through the training provided by the employer and/or Eskom and the posting up of the cardinal rules, at prominent positions at the workplace.
The following extracts from the judgment are of particular interest:
“To the extent that the rule was breached, the court accepts the reasons why the rule was put in place by Eskom and why there was a requirement that everyone on site should obey it. Its primary objective was the safety of all 10 000 personnel on the site, and specifically prohibited all persons from handling or doing anything with a mobile phone whilst operating a vehicle or even whilst walking on the road on site.” (paragraph 48)
“There were designated areas where cell phones could be used on site, The rule was enforced also in view of evidence by Paul that there was constant flow of heavy duty trucks and vehicles on the road, and there had been numerous vehicle accidents and injuries resulting from drivers using phones whilst operating vehicles, or from employees walking on the roads and not paying attention to moving vehicles.” (paragraph 49)
“As a result of the accidents, Eskom had implemented a zero tolerance approach, and any employee in breach of the rule was removed from the site. This implies that an employee of DBT which is a service provider/sub-contractor on site, would be prevented from entering the site once the rule was breached. Added according to Paul was that DBT had its own campaigns on safety, which were accompanied by what is referred to as a Toolbox Talk on cell phone technology and road safety, and which Nhlapo was well aware of. Paul had further added that DBT as a sub-contractor had to apply and adhere to the principal contractor’s (Eskom) as well as clients’ rules.” (paragraph 50)
It is an undeniable fact of human nature that we all think that “it can never happen to me”. Having sat through numerous inquiries under the auspices of the Department of Employment and Labour and the Department of Mineral Resources and Energy into workplace accidents, it is clear that distraction while operating motor vehicles, equipment and machinery, can lead to incidents and accidents with disastrous consequences.
Lifesaving and cardinal rules are in place for a reason and must be complied with.