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[2010] ZALCJHB 24
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR1347/2007) [2010] ZALCJHB 24 (9 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
CASE
NO: JR1347-2007
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS 1
ST
APPLICANT
PETER
MASHA 2
ND
APPLICANT
V
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION 1
ST
RESPONDENT
MTUTUZELI
NGQELENI 2
ND
RESPONDENT
TAVISTOCK
COLLIERY A DIVISION OF XSTRATA
SOUTH
AFRICA
(PTY)
LTD 3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
On 21 October 2010, I gave an order with brief (ex-tempore) reasons
dismissing the application for review with no order as to
costs. Here
are my written reasons for my order.
[2]
This is an application to review and set aside an award in terms of
which the 2
nd
applicant’s dismissal was found to be
substantively and procedurally fair. The applicant contends that his
dismissal was
procedurally and substantively unfair
[3]
The applicant (Mr. Peter Masha) was charged and dismissed for being
in unauthorized possession of company property. The incident
which
led to his dismissal took place on 16 October 2006 at approximately
12 am. A disciplinary hearing was held on 6 November
2006 and the
applicant was found guilty and dismissed.
[4]
The applicant raises 12 grounds for review. In brief it is,
inter
alia,
stated that the arbitrator failed to investigate the
authenticity of the allegations; he failed to take into account the
applicant’s
version and failed to give reasons for rejecting
the applicant’s version. It was also submitted that the
arbitrator placed
the burden of proof on the applicant to explain why
Mr. Ben Mohlaole would lie. The commissioner also failed to apply her
mind
and consequently reached conclusions that are speculative. It is
also alleged that the commissioner failed to investigate the
authenticity
of the polygraph test and that she had failed to
investigate as to whether or not the respondent did in fact lost the
property.
The
award
[5]
The commissioner summarized the evidence and more in particular
referred to the evidence of Mahloale who had testified that
he had
met the applicant on the day in question and that the applicant was
carrying a sample bag . The sample bag tore apart and
certain items
fell on the ground. Mahloale later reported the incident to his
superiors.
[6]
It was the applicant’s case that he had in fact alerted his
Head of Department of the fact that some workers were allegedly
stealing bonuses. He, however, admitted that he had met Mahlaole and
that he was carrying a sample bag. He, however, denied that
the
sample bag tore apart and that the contents fell on the floor.
[7]
The commissioner duly considered whether or not the applicant was
guilty as charged and in doing so the commissioner set out
the two
versions that were presented to the arbitration. After having
evaluating the evidence of Mahloale, the commissioner came
to the
conclusion that, in light of the fact that the applicant could not
provide a reasonable explanation as to why Mahlaole would
lie, that
the balance of probabilities favoured the respondent. The
commissioner also pointed out that there were no evidence that
the
two (Mahloale and the applicant) did not get along nor of the fact
that Mahloale was linked to an alleged bonus scheme fraud.
The
commissioner also took into account that Mahloale had undergone a
polygraph and that he was found to be truthful.
Evaluation
[8]
The applicant submits,
inter alia
, that the commissioner in
effect placed a burden of proof on him to explain why Mahlaole would
lie about the applicant and in doing
so the commissioner committed
misconduct. If regard is had to the award and the reconstructed
record it is clear that the commissioner
did not place a burden on
the applicant. The commissioner merely held that the applicant could
not provide an explanation as to
why Mahlaole would lie about what
had happened. This is not placing a burden of proof on the applicant.
Moreover, this observation
is not reviewable and merely serves to
indicate that the commissioner was of the view that there was no
obvious reason as to why
Mahlaole would implicate the applicant.
[9]
In respect
of the polygraph issue. It is accepted that a polygraph cannot be
taken into account on its own. It is, however, accepted
that it has
some probative value and that the results of such a test may be taken
into account in assessing the fairness of a dismissal.
[1]
In my view the results may also be taken into account as one of the
factors in assessing the credibility of a witness and in assessing
the probabilities.
[10]
The applicant also argued that Mahlaole had changed his version and
argued that the commissioner should have taken this into
account.
There is no indication from the award that the commissioner did not
take this into account. What is clear from the award
is the fact that
the commissioner was alive to the fact that Mahlaole did not
initially report the incident as he was scared. This
explanation,
coupled with the fact that Mahlaole had passed the polygraph can be
taken into account by the commissioner in arriving
at a decision. Put
differently, the fact that the commissioner took these factors into
account is not unreasonable. In fact, if
the award is considered it
appears that the commissioner was alive to the evidence led before
the arbitration and properly considered
the probabilities before
arriving at a decision.
[11]
The applicant also argues that the award is reviewable because the
commissioner did not investigate whether or not the respondent
did in
fact lost the alleged property. There is no merit in this argument.
In this regard the evidence of Ms. Busisiwe Gloria Petros
was that
items to the value of approximately R 14 000.00 was lost. There is no
evidence on the record to gainsay this.
[12]
The applicant also criticizes the finding of the commissioner that
more than one person could have been involved in the theft.
The
applicant also took issue with the conclusion by the commissioner
that the items in the possession of the applicant were definitely
stolen goods. I have considered the commissioner’s reasoning.
What the commissioner apparently concluded was that, in light
of the
demonstration that was done during the arbitration, that only a few
of the items that were stolen could fit in the bag.
It was probably
on this basis that the commissioner then was of the view that more
than one person could have been involved in
the theft. What is in my
view relevant here is the fact that the commissioner was confronted
with two mutually destructive versions.
The one version was that the
applicant had these items in the sample bag and that these items are
stored in the storeroom. The
applicant’s version was that it
was his PPE (personal protective equipment). The commissioner, as was
required to do, then
proceeded to evaluate and consider the
probabilities. She came to the conclusion that she was persuaded that
the evidence of Mahloale
was to be preferred. I am in agreement with
the respondent’s submission that this conclusion is not
reviewable. It is certainly
in light of the evidence not an
unreasonable conclusion.
[13]
The other complaint of the applicant was the fact that there was a
plot against him because he had uncovered a bonus fraud
scheme. If
the award is perused it is clear that the commissioner was completely
alive to this allegation. The commissioner, however,
found that there
was no evidence before her to substantiate this allegation. I am in
agreement with her conclusion. The evidence
tendered by the applicant
in this regard is extremely sketchy making it impossible for the
commissioner to come to any meaningful
conclusions.
[14]
In conclusion, if the award is read in light of the record, I am of
the view that it cannot be said that the decision arrived
at is
unreasonable. It is clear that the commissioner properly evaluated
the evidence and that she properly considered the probabilities.
This
is not a decision that a reasonable decision maker could not have
come to. In the event the review is dismissed. I make no
order as to
costs.
_____________
AC
BASSON, J
Date
of proceedings and order: 21 October 2010
Date
of written reasons: 9 November 2010
For
the applicant: Mr Makinta of ES Makinta Attorneys.
For
the respondent: Adv AN Snider. Instructed by Webber Wentzel
Attorneys.
[1]
Truworths
Ltd v Commission for Conciliation, Mediation & Arbitration &
Others (2009) 30 ILJ 677 (LC): [36] It is accepted
that a polygraph
is a controversial method of gathering information and that opinion
is divided on the probative value of the
results probative value of
the result. Professor Grogan in Sosibo & others v Ceramic Tile
Market (2001) 22 ILJ 811
(CCMA); [2001] 5 BALR 518 (CCMA) sets
out the divergent approaches in respect of polygraphs.
'Following
the Mahlangu case, attitudes to polygraph test evidence have
followed the several and divergent lines:
(1)
Some cases have held the view that ''our courts do not accept
polygraph tests as reliable and admissible. Nor do they
draw
an adverse inference if an accused employee refuses to undergo such
a test'. See Kroutz v Distillers Corporation Ltd
(1999) 8 CCMA
8.8.16 case no KN25613; Malgas v Stadium Security Management
(1999) 8 CCMA 10.8.1 GA21495; E Themba &
R Luthuli v National
Trading Company CCMA (1998) KN16887; F
(2)
Polygraph test evidence is not admissible as evidence if there was
no evidence on the qualifications of the polygraphist,
and if he or
she was not called to give evidence. See Sterns Jewellers v SACCAWU
(1997) 1 CCMA 7.3.12 case no NP144; Mudley
v Beacon Sweets &
Chocolates (1998) 7 CCMA 8.13.3 KN10527; Spoornet -
Johannesburg v G SARHWU obo J S Tshukudu
(1997) 6
ARB 2.12.1 GAAR002861; Chad Boonzaaier v HICOR Ltd CCMA (1999)
WE18745;
(3)
Although admissible as expert evidence, polygraph results standing
alone cannot prove guilt. See the arbitration Metro Rail
v SATAWU
obo Makhubele (2000) 9 ARB 8.8.3 GAAR003888; NUMSA obo
H Masuku v Marthinusen & Coutts (1998)
7 CCMA 2.9.1
(case no MP5036); Ndlovu v Chapelat Industries (Pty) Ltd
(1999) 8 ARB 8.8.19 GAAR003528; but see Govender
and Chetty v
Container Services CCMA (1997) KN4881 where the dismissal was
upheld even though there was no direct evidence
linking the
applicants to the theft. The commissioner found the inference of the
polygraph test to be ''overwhelming'.
(4)
Where there is other supporting evidence, polygraph evidence may be
taken into account. See CWIU obo Frank v Druggist Distributors
(Pty)
Ltd t/a Heynes Mathew (1998) 7 CCMA 8.8.19 case no WE10734.'
[37]
What appears from the aforegoing is that a polygraph test on its own
cannot be used to determine the guilt of an employee
(see also John
J Grogan Workplace Law (9 ed) at 160). However, a polygraph
certainly may be taken into account where other
supporting evidence
is available provided also that there is clear evidence on the
qualifications of the polygraphist and provided
that it is clear
from the evidence that the test was done according to
acceptable and recognizable standards. At the very
least, the result
of a properly conducted polygraph is evidence in corroboration of
the employer's evidence and may be taken
into account as a factor in
assessing the credibility of a witness and in assessing the
probabilities. The mere fact that an
employee, however, refuses to
undergo a polygraph is not in itself sufficient to substantiate an
employee's guilt.”
See also:
Food & Allied Workers
Union on behalf of Kapesi & Others v Premier Foods Ltd t/a Blue
Ribbon Salt River
(2010) 31
ILJ
1654 (LC):