‘Cellphone rage’ case dismissed

ACT OF ‘MELODRAMATIC CONTRITION’

ABANK employee dismissed for “aggressively” throwing his cellphone into the bin was reinstated after a CCMA commissioner and a Labour Court judge ruled he had most likely acted out of “melodramatic contrition” for bringing the phone into a prohibited area.

Ivan Chetty was dismissed from Absa Bank – where had worked for 26 years – after his cellphone beeped in his pocket during a “heated meeting” about outsourcing in April 2014. A repeat offender, he was reprimanded, after which he threw the phone into the bin, saying it “was the only way to get rid of the sin”.

He was charged and dismissed after a disciplinary hearing, after which he took the matter to the CCMA where a commissioner found in his favour.

Absa then took the matter on review to the Durban Labour Court and, in a recent ruling, Judge Benita Whitcher also ruled in Chetty’s favour.

Referring to the evidence before the CCMA, the judge said Chetty had conceded breaching the “no cellphone rule”, but said this was not deliberate and he had not actually used the phone.

He said he threw the phone into the bin because he was frustrated and wanted to dispose of the device which was getting him into trouble. The “gesture was meant to convey he was sorry”.

Absa’s four witnesses all said he threw the phone into the bin in an aggressive “overarm movement” after charging at one of them. They admitted that as he did it, he said it was because it was an “instrument of sin”.

Assessing the evidence, Judge Whitcher said it was not unreasonable for the commissioner to treat the infraction of the rule as one of failure to obey rather than refusal, and it appeared this charge had been escalated to something more severe than its factual basis.

“The commissioner quite correctly spotted this fact and ruled accordingly.”

She said it was apparent that the real problem Absa had with the award was the finding that the cellphone was not thrown in anger or defiance.

In preferring the version of Chetty, the commissioner, had noted that initial statements made by Absa’s witnesses had not mentioned any aggression. This had only been raised in their testimony.

The judge said the bank had also taken the commissioner to task for ignoring an account of a previous run-in with Chetty.

“They would have this show his predisposition to aggression and insubordination ... but this is similar fact evidence which is generally excluded.

“There were also differences in the two incidents. In this one he conceded fault and was not reacting to what he claimed was a false accusation (in the first incident).”

Regarding the credibility of the Absa witnesses, the judge took note of concerns that their testimony appeared rehearsed and that one had described Chetty as “generally troublesome”.

Crucially, she said, the commissioner had assessed Chetty’s demeanour during the hearing as being “someone who lacked grace” and having an “abrasive manner” – someone who could have thrown the phone into the bin as an “overblown show of remorse”, particularly in the light of his evidence that he would rather keep his job than his phone.

The judge said the bank had not properly shown that Chetty’s reinstatement would be intolerable and dismissed the application with costs.