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[2001] ZALCJHB 6
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Morota v Nene (JR658/01) [2001] ZALCJHB 6 (11 September 2001)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR658/01
DATE:
2001-09-11
In
the matter between
WITHNEY
WABELA
MOROTA Applicant
and
DR
LAURA
NENE Respondent
J
U D G M E N T
REVELAS
J
:
1.
This is an application for the review of an arbitration award issued
by the second respondent, an arbitrator who conducted an
arbitration
under the auspices of the first respondent, and made an award in
favour of the third respondent, the erstwhile employer
of the
applicant. The applicant was employed by the third respondent as a
security guard.
2.
She stated at the arbitration hearing that she employed a security
guard as she was very concerned with her safety, and that
the
applicant had performed very well as a security guard. She testified
that in an incident which occurred prior to the one giving
rise to
the dismissal that the applicant had once, apparently in a moment of
losing his temper, pointed a gun at the third respondent's
secretary.
She had dismissed both of them at the time, but felt sorry for them
when they later asked for their positions back,
and re-employed them.
This, she stated, she did regretfully.
3.
At the beginning of 2000 the applicant received a phone call and
subsequently had a meeting with members of Crime Stop, and they
informed her that the applicant, and a person employed by the third
respondent as a cleaner, had conspired to assassinate her and
make it
look like a robbery.
4.
Subsequently the third respondent hired a private investigator, Mr
Slang van Zyl, to investigate the matter. During his investigations
a
polygraph test was conducted on the cleaner and the applicant. The
findings of the polygraph test was that the two parties scrutinised
were
"deceptive"
. The third respondent decided to
suspend the applicant, but towards the end, as she stated, she
impulsively dismissed him.
5.
The applicant attacks the fairness of his dismissal both on
procedural and substantive grounds on review.
6.
Insofar as the substantive fairness is concerned, I am aware that
guilt on the part of an employee may not be established solely
on the
findings of a polygraph test, and in most cases it should not be
admitted as evidence, because of the inherent unreliability
in such
tests.
7.
However, on the facts of this case, the second respondent listened to
evidence, rejected the version of applicant, and therefore
it cannot
be said that he did not apply his mind to the facts.
8.
It must also be remembered that there was a previous occasion on
which the applicant had pointed a gun at an employee in the
presence
of the third respondent. The third respondent did not make up her
mind in favour of dismissing the applicant, based solely
on the
findings of the polygraph test conducted, but on what an informant
had told her. She was phoned by the police and given
the information
and warned about the conspiracy.
9.
It has been held that an employer who suspects an employee of theft
has adequate grounds to dismiss. In the circumstances of
this case
the second respondent cannot be criticised for finding that there
were enough facts present on which to find the dismissal
to be the
appropriate sanction.
10.
With regard to the question of procedure, it is so that there was a
complete absence of procedure. But it would be a sad day
where if an
employer who believes, on sound information given to him or her, that
the employee who has conspired to kill her should
be entitled to 12
months remuneration as compensation.
11.
I therefore also decline to interfere with the decision of the second
respondent, that the dismissal was procedurally unfair.
12.
In terms of Schedule 8 of the
Labour Relations Act, 66 of 1995
, there
should normally be an investigation, but there could be exceptional
circumstances where a hearing cannot be held.
13.
My view is in these circumstances there was ample reason not to have
a disciplinary inquiry.
14.
In the circumstances the application is dismissed.
______________
E.
Revelas
[COMMENT1]
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