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[2014] ZALAC 15
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DHL Supply Chain (Pty) Ltd v De Beer NO and Others (DA4/2013) [2014] ZALAC 15; [2014] 9 BLLR 860 (LAC); (2014) 35 ILJ 2379 (LAC) (13 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
REPORTABLE
CASE NO: DA4/2013
IN
THE APPEAL OF:
DHL
SUPPLY CHAIN (PTY)
LTD Appellant
and
DE
BEER
N.O. First
Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGHT
INDUSTRY Second
Respondent
R
DUBE AND E
MASINGA Third
and Fourth Respondents
Heard:
25 February 2014
Delivered:
13 May 2014
Summary: review of
arbitration award- employees dismissed for alleged theft after
failing polygraph test –- polygraph tests
not conclusive nor
corroborative to establish guilt in the absence of expert evidence to
establish cogency of such evidence –
previous judicial
decisions allowing or weighing polygraph evidence does not mean
expert evidence can be dispensed with in a subsequent
given case -
polygraph evidence is not an ‘approved species of
evidence’ and must in every case be
the subject of expert
evidence to establish its conceptual cogency and accurate application
- Arbitrator’s decision holding
the dismissal unfair
reasonable- Labour Court judgment affirming that decision upheld -
no case of misconduct made out at
all - retrospective
reinstatement rather than compensation appropriate - Appeal dismissed
with costs.
Coram:
Ndlovu JA, Molemela and Sutherland AJJA
JUDGMENT
SUTHERLAND
AJA
Introduction
[1]
The appellant (DHL) employed the third and
fourth respondents as workers on a crew handling cigarettes in a
dispatching warehouse.
Stock losses occurred on five successive days
in June 2008. The two respondents were dismissed for being implicated
in the theft
of this stock of cigarettes. They referred an unfair
dismissal dispute to the Road Freight Bargaining Council. An
arbitrator, the
first respondent, reversed the dismissal on the
grounds that guilt was unproven. DHL was aggrieved and sought to
review that decision.
The Labour court in reviewing the decision,
upheld the arbitrator’s award that no misconduct was proven and
ordered that
the two men be retrospectively reinstated. DHL now
appeals against that judgment.
[2]
The two issues in the case are, first
whether guilt was proven and, even if not, was reinstatement
appropriate rather than a compensation
order. The test on review to
evaluate these aspects of the matter is whether the arbitrator’s
decision was one to which a
reasonable arbitrator, upon the body of
evidence adduced, could not come. (
Sidumo
and Another v Rustenburg Platinum Mines and Others (2007) 28 ILJ
2405
)
Was
guilt proven?
[3]
The hard facts are barely in dispute. The
two respondents and six others who were members of a particular crew
working on a line
which picked and packed consignments. Unexplained
stock losses occurred that were, supposedly, linked to a period when
they were
on duty. DHL took the view that one or more members of the
crew were probably implicated in the thefts. The dilemma that faces
all employers in such a predicament is plain: is it all of them or
some of them? An anterior danger, often overlooked by an employer
also looms: were they looking in the right place?
[4]
Two developments took place. The first was
to subject every crew member to a lie detector or polygraph test. At
the beginning of
the investigation into the stock losses the workers
were all asked to agree to such a test and they did so on 7 July.
[5]
The two respondents were the only crew
members to fail the test. In the arbitration, there was no challenge
to the case advanced
that the application of the lie detector process
was, on its own terms, efficiently carried out. It may be assumed,
for present
purposes, that whatever was supposed to be done to
produce the results that such a device can produce was properly
executed and
no ‘irregularities’ occurred in the
prescribed procedure. The intrinsic value of such a process is an
altogether other
issue, an aspect addressed separately.
[6]
The second development was that the two
respondents were charged with what amounted to theft in an internal
enquiry. It is contended
by DHL that in that enquiry and again in the
arbitration, the two men were poor witnesses and that their
testimony, properly assessed,
lacked credibility. The arbitrator
commented adversely on the two respondents’ evidence about
their unfamiliarity with the
English language and of the value of the
stock, which alleged unfamiliarity was considered by the arbitrator
to be feigned. However,
it was only about these ancillary aspects
that criticism was expressed. For present purposes, it may be assumed
this criticism
was appropriate.
[7]
In addition, it was established in the
arbitration that after the suspension of the two men, the stock
losses all but ceased. There
was, however, also evidence that before
the five days spate of losses, there were no losses for the previous
three months.
[8]
On the strength of these factors,
cumulatively evaluated, DHL contends that a reasonable arbitrator
could not do otherwise than
find the two respondents guilty and
endorse their dismissal.
[9]
The crucial part in the arbitrator’s
award, at pp 36 -37 of the Record, states thus:
‘
It
is trite that polygraph evidence, when coupled with other
circumstantial evidence, can be sufficient to discharge the onus in
labour disputes. (This is supported by numerous cases, such as
SACCAWU obo Chauke v Mass Discounters (2004) 13
CCMA 21.3.1 and MEWUSA obo Mbonamni v S Bruce cc (2005)
14 MEIBC). In both these cases there was additional circumstantial
evidence that led the commissioner to conclude that the applicants
were dishonest as lying about their whereabouts.
Circumstantial evidence
has been defined as ‘indirect evidence which creates an
inference from which a main fact can be inferred’.
Van der
Merwe in
Principles of Evidence
(sic) stated that it often
formed an important component of cases at the CCMA. It required the
commissioner to draw an inference
from the set of circumstances but
it had to be the
most probable
inference that could be drawn
(my emphasis) and must amount to more than a reasonable suspicion of
wrongdoing.
If I omit the adverse
polygraph test result …the evidence against the applicants is
as follows:
They
worked on the days the stock went missing
They were amongst a group
of 8 employees who had access to the stock
The
stock is very valuable
The
stock loss dropped off considerably once they were suspended.
do not
believe the
most probable
inference to be drawn from the above set of facts is that the
applicants were guilty of ‘participating in/involvement
with/knowledge
of’ the missing stock. The fact that the
applicants were on duty and had access to the stock does not allow me
to draw
any inference that they were involved in the removal of
stick. The same can be said for the value of the stock. At best for
the
[employer] the final factor suggests some sort of causal link
between the applicants and the stock losses but [the evidence was]
that the theft had not stopped completely since their dismissal.
Indeed, [it was testified to] that it abated for some time
but where
‘one group left off another one picked up’. It must also
be noted that an equally probable inference that
can be drawn from
this fact is that the real culprits were scared off by the dismissals
and decided to ‘lie low’ for
a while. In addition, [it
was the evidence] that additional security measures had been put in
place since June 2008 which might
also account for the reduced stock
losses.
I certainly do not
believe that the evidence cited by the respondent [employer] as
‘circumstantial’ is indeed circumstantial
evidence, as
defined, and I also do not accept that any of those 4 factors either
individually or cumulatively, is sufficient evidence
for me to draw
as the most probable conclusion that the applicants were guilty of
misconduct. The inescapable conclusion is that
the [employer’s]
case leans heavily on the fact that the applicants failed the
polygraph test. Indeed, it is the very reason
only two of them were
charged, even though the other 6 employees who were on shift met at
least 3 of the four factors cited by
the [employer] as circumstantial
evidence. It seems fairly clear to me that if the applicants had
passed the polygraph they would
not have been charged or dismissed
and that the adverse result was the de facto reason for their
dismissal. Given what has
already been stated about the legal
standing of polygraph test results in the absence of any supporting
evidence, I have no choice
but to find that the [employer] has not
established guilt on a balance of probabilities.’
[10]
Several criticisms were advanced on both
the award and the judgment. It is unnecessary to traverse the
minutiae. The thrust is straightforward:
the contention is that the
error committed was a failure to appreciate the totality of the
evidence leading to an unreasonable
outcome. In particular, it is
argued that the polygraph evidence was dealt with inappropriately by
the arbitrator and the weight
due to it was not accorded.
[11]
In my view the criticisms are without
merit. From the passage of the award, cited above, it is plain that
the polygraph case was
indeed considered by the arbitrator, and
indeed a benign view was taken of the polygraph process. Nor was the
Review Court dismissive
of the polygraph evidence. Indeed, despite
the absence of expert evidence to establish the cogency of the
concept of polygraphs
and their efficacy, the evidence was taken at
face value, an approach apparently based on a willingness by the
Labour Court in
the past to attribute a degree of respectability to
such a process.
[12]
What both the arbitrator and the Review
Court did was to pose the unavoidable question:
what
was polygraph evidence worth in the context of all the facts
?
The conclusion reached was that although it could, in the view
adopted in both fora, be fairly inferred that failing a test could
fortify a reasonable suspicion, a failure was not weighty in the
absence of other evidence demonstrating, objectively, a case that
called for a credible rebuttal. In both fora, the conclusion was
reached that there simply was not enough evidence from which to
infer
guilt.
[13]
In our view, that finding was, on the body
of evidence adduced, a reasonable stance to adopt.
[14]
The answer proffered by DHL to try to tip
the scales is the alleged lack of credibility of the two respondents.
This contention
is misplaced. The fact that the evidence given by the
two respondents might not diminish the reasonable suspicion harboured
by
DHL, cannot serve to tip the scales in the least. Such a notion is
a non-sequitur. The arbitrator’s remark that she questioned
their veracity is limited to a finding that they pretended to be
unfamiliar with the English language and ignorant about the value
of
the stock. Such obfuscation is not rare when a person is submitted to
the rigours of forensic proceedings and caution must be
exercised not
to read too much into it. The innocent no less than the guilty are
prone to be defensive and evasive when they feel
their backs against
the wall.
[15]
Furthermore, the notion that they offered
no real challenge to the facts adduced by the appellant and that this
warrants an adverse
inference is illogical. An innocent person in the
position of the two respondents could be expected to do no more than
deny guilt
and express ignorance about how and why the losses
occurred. Significantly, despite the ostensible best efforts of DHL
itself,
the means of misappropriation remain unknown and precisely
when it occurred in the chain of handling could not be established.
The proof that the respondents had the opportunity to steal is
valueless without more and it could never be a burden on them to
offer alternative theories for the misappropriation in order to
achieve exoneration.
[16]
Moreover, the partial improvement in stock
control after their departure does not warrant the inference that the
employer identified
the real culprits. As rightly held by the
arbitrator, the risk that the two respondents are innocent and that
the true thieves
were cunning enough to lie low to manipulate
precisely such a perspective is real and that risk defeats the
reasonableness of such
an inference. Also, the evidence of the tight
security, including patrolling guards and cameras, must logically
have diminished
the opportunity for misappropriation considerably. Of
course, the security surveillance was not fool proof. Nevertheless,
not a
hint of impropriety or ambivalent behaviour on the part of the
two respondents could be shown from such surveillance.
[17]
Ultimately, what was indeed left as the
distinctive and critical element in the belief by DHL in their
misconduct was their failure
of the polygraph test, and poor
performances as witnesses in a forensic process.
[18]
The conclusions by the arbitrator and the
court
a quo
that the
onus
on DHL to establish guilt was not discharged is, therefore, not
vitiated by any unreasonableness because it is plain that other
reasonable inferences that do not inevitably implicate the two
respondents could not be excluded to account for the losses.
Was
reinstatement an unreasonable outcome?
[19]
The contention is advanced that the
reinstatement order flew in the face of evidence that demonstrated
the inappropriateness of
a resumption of a working relationship which
had broken down irretrievably. The test here is again whether a
reasonable arbitrator
could seriously conclude that this relationship
could be restored.
[20]
The case advanced by DHL against
reinstatement can be summarised thus:
20.1.
Uncompromised integrity is essential for
every worker in the warehouse so that the employer can have
unqualified confidence in the
honesty of every individual.
20.2.
Thus, even if a case of theft is unproven,
the taint of suspicion has undermined the requisite degree of
confidence which is an
operational necessity.
20.3.
There is thus no room for a worker who
falls under such suspicion to be rehabilitated in the eyes of the
Management.
20.4.
The burden of watching the two respondents
carefully would be inappropriate to impose of the employer.
[21]
The
Labour Relations Act 61 of 1995
prescribes reinstatement unless it is proven to be intolerable or
impracticable.
(Section 193
(2) (b) and (c)) The evaluation of this
question is clinically objective, having regard to the balance of
fairness between employer
and employees and a decision is the outcome
of the exercise of a discretion: (
Equity
Aviation Services (Pty) Ltd v CCMA
(2008)
29 ILJ 2507 (CC) at [48]). A decision in terms of this Section is
therefore, in part, a value judgment and, in part, a factual
finding
made upon the evidence adduced about the unworkability of a
resumption. Core equitable values demand that a worker who
is not
proven to be guilty of dishonesty should not forfeit a valuable and
scarce employment opportunity. This is precisely the
reason why
reinstatement is the primary and default remedy, unless it is
displaced by factors that serve to outweigh its underlying
rationale.
Those factors are intolerability or impracticability and set high
thresholds.
[22]
The point of departure in this case is to
ask what a fair minded employer is to do when a crew falls under a
reasonable suspicion
of dishonesty. The proper defence of commercial
interests and a prudent response is not limited to misconduct
dismissals. If a
misconduct process is unavailable, or fails for
absence of proof of guilt, must the employer be forced to just lump
the risk of
losses? The answer is no. There are other processes,
dictated by operational needs, which must obviously be considered too
(cf
FAWU obo Kapesi and Others v Premier
Foods t/a Blue Ribbon Salt River
(2012)
33 ILJ 1779 (LAC)) It is unnecessary to speculate on the outcomes of
such options, nor if all the necessary requirements
are indeed
present in this case.
[23]
However, regardless of these generic
considerations, the evidence in this case discloses that other
persons in the employ of DHL
who, on other unrelated occasions and in
respect of other events, failed a polygraph test, remain employed
because of the absence
of other objective evidence to point towards
culpability. No material distinction exists between those examples
and the two respondents,
save that in those cases they were cleared
for lack of evidence by in-house decisions and in this case, the
arbitrator cleared
them. Closer to home, are the six fellow crew
members who, it is plain, are distinguished only by having not failed
the test, and
as the evidence, other than that of the polygraph, does
not warrant an accusation of misconduct, the mere addition of the
polygraph
test failure also ought not to warrant an accusation.
[24]
Lastly, it must be borne in mind that the
critical question is not whether the Appeal Court might have taken a
view different to
that taken by the arbitrator or the Review Court;
the sole issue is whether a stain of unreasonableness marks the award
which restored
the two respondents to their jobs when no proof of
culpability was established. It is difficult to construe that such a
decision,
giving weight to the relative equities, and the options
available to DHL, was perverse and thus unreasonable in the
circumstances.
The resort to
Polygraph evidence in disciplinary proceedings
[25]
Because the arbitrator and the Review court
took a benign view of adducing, as a species of evidence, a polygraph
process, thereupon
admitted the evidence, but nevertheless found
that, holistically, together with the other evidence, there was
inadequate evidence
to establish guilt, it has been unnecessary for
this court to pronounce on the propriety of the admission, in
principle, of such
evidence. Nevertheless, it seems appropriate to
record some general observations about the introduction of polygraph
evidence into
court or arbitral proceedings. These observations have
been provoked by the treatment of the polygraph process in these
proceedings
before the arbitrator and before the Review Court.
[26]
As alluded to earlier, in this case, no
expert evidence was adduced to establish the cogency of the
concept
of a polygraph nor to establish the
technical
integrity
of the process. The say-so of
the operator of the device is unlikely to be of such a nature to
properly qualify as expert evidence
of the validity of the underlying
concept or to be convincing if it is tendered because of an obvious
lack of independence and
a lack the appropriate credentials. In
FAWU
obo Kapesi and Others v Premier Foods Ltd
t/a Blue Ribbon Salt River
(2010) 31 ILJ 1654 (LC) and
NUM and
Others v Coin Security Group (Pty) Ltd
t/a Protea Coin Group
(2011) 32 ILJ 137 (LC) expert evidence was admitted about the
process. It seems to me to be a serious omission to consider such
evidence in the absence of expert evidence. The fact that courts
have, previously, on one or another footing, admitted such evidence,
cannot serve as a licence to admit it in all subsequent proceedings.
Indeed, a reading of the cases where benign remarks have been
made
about this species of evidence does not warrant the supposition that
it is an ‘
approved type of
evidence’.
[27]
Basson J in
Premier
Foods
had to deal with polygraphs as
one aid, among others, in determining a fair selection for
retrenchment. Persons likely to have
participated in violence in a
strike were being selected. Statements had been procured alleging
their participation. The management
invited them to take a test which
the retrenches had refused to do. At [90] it was held that:
‘
At
best, the polygraph could be used as part of the investigation
process to determine wherever or not a further investigation into
the
conduct of a particular individual is warranted’.
This
judgment does not address the use of a polygraph test
as evidence,
still less sanction it. In the survey of the expert evidence, Basson
J makes certain findings about the value of polygraphs; however,
these cannot be read as the laying down of principles of evidence
which, by extrapolation, other litigants can subsequently invoke
as
judicial authority in their separate and discrete matters. In the
Coin Security case,
Steenkamp J heard expert evidence which
rubbished the conduct of the tests and as a result he disregarded the
evidence on that
footing.
[28]
In the only LAC decision about polygraphs
hitherto,
SATAWU and Others v Khulani
Fidelity Security Services (Pty) Ltd
(2011) 32 130 (LAC), the employer, who supplied guards over the
baggage handling at airports, and its workers, were bound by a
collective agreement in terms of which there was to be a quarterly
polygraph test and in the event of failing it, the employees
would be
at risk, at the instance of the Airports Company, to be removed from
the site. The aggrieved workers, who failed the test,
were removed
and were then retrenched. The propriety of that process under those
circumscribed circumstances was held not to violate
any rights. In
Sedibeng District Municipality v SA
Local Government Bargaining Council and Others
(2013) 34 ILJ 166 (LC) at [41], a polygraph was held to be a
legitimate component of a process to determine integrity for the
purposes of selecting persons for promotion, provided there was other
information that cast a suspicion on an individual.
[29]
An example of a polygraph being used in a
misconduct case is
Truworths Ltd v CCMA
(2009) 30 ILJ 677 (LC). In a review, the award was set aside for a
myriad of irregularities, including a failure to have regard
to all
the evidence, amongst which was evidence of polygraph tests. (at
[38]) Further, in that judgment, relying on the observations
of
Grogan A in
Sosibo and Others v Ceramic
Tile Market
(2001) 22 ILJ 677 (CCMA),
it was held at [37] that a polygraph is useless on its own but may be
‘taken into account’
together with ‘other
supporting evidence’. The
dictum
goes onto say that a polygraph can serve as corroboration of other
evidence.
[30]
These considerations beg the question about
what a failed polygraph test really produces by way of usable
information. Only the
inference to be
drawn from the failure of the test
is
useful as material to determine probabilities. In the absence of
expert evidence to explain what that inference is, either
generically, or within the bounds of the specific instance itself,
and also to justify the explanation of what that is, there is
nothing
usable at all that might contribute to the probabilities. In this
appeal, DHL’s consent form, signed by the two respondents,
states that the test would indicate that the worker was either
involved or not involved in the stock loss. That premise is
questionable,
and to belabour the point, required the kind of expert
evidence mentioned above to render it worthy of consideration.
[31]
In summary, the respectability of polygraph
evidence, at best, remains an open question, and any litigant seeking
to invoke it for
any legitimate purpose, must, needs be, adduce
expert evidence of its conceptual cogency and the accuracy of its
application in
every given case.
The
Order
[32]
Owing to the elapse of time since June 2008
when the events occurred and the elapse of time since the award was
handed down on 17
June 2010, it is appropriate to adapt the order and
address obvious eventualities that might have occurred in the
intervening period.
[33]
Accordingly, an order is made as follows:
33.1.
The appeal is dismissed with costs.
33.2.
The award granting reinstatement with
effect from 28 August 2008 is confirmed.
33.3.
The appellant’s liability for payment
of all and any sums to the respondents in respect of that period
shall be calculated
with regard to any sums of income from employment
or business activities received by the respondents, which sums, if
any, shall
be set off against the sum payable.
33.4.
The appellant shall make formal written
demand to the respondents to report for work on not less than five
working days’ notice;
such notice may be given to the
respondents’ attorneys of record.
33.5.
The respondents must comply with such
notice by tendering to resume work in accordance with the notice, and
upon compliance, all
payments in terms of this order shall be due and
payable by not later than five working days after such compliance.
_______________
Sutherland
AJA
I
agree
_______________
Ndlovu
JA
I
agree
_______________
Molemela AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv F Venter
Instructed by Johannes de
Beer
Ref R Makoele
FOR
THE THIRD AND FOURTH
RESPONDENTS:
Adv
D
Crampton
Instructed by Potgieter
Kunene Xaba
Ref S Kunene