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[2014] ZALAC 124
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DHL SUPPLY CHAIN v De Beer NO (DA4/2013) [2014] ZALAC 124 (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