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[2012] ZALCJHB 45
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Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09) [2012] ZALCJHB 45; [2012] 9 BLLR 923 (LC); 2013 (1) SA 395 (LC); (2013) 34 ILJ 166 (LC) (31 May 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: JR 1559/09
In the matter between:
SEDIBENG DISTRICT
MUNICIPALITY
Applicant
and
THE SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL
First
Respondent
SAMWU obo MOKOENA AND MOLEKA
Second
Respondent
E VAN ZYL
Third
Respondent
K VAN DER MERWE
Fourth
Respondent
M A MSIBI
Fifth
Respondent
MAPHOKO MATHOLE (
NO
)
Sixth
Respondent
Heard
:
04 February
2011
Delivered
:
31 May 2012
Summary:
(Review – polygraph test results as a criterion
for appointment).
JUDGMENT
LAGRANGE, J
Introduction
This is an application to view and set aside an arbitration award
handed down in May 2009 by the sixth respondent ("the
arbitrator”).
The issue before the arbitrator was whether the applicant ("the
municipality") had committed an unfair labour practice
by not
promoting the individual respondents, Mr M W Moleko and Ms M Mokoena
(‘the employees’) to the posts of Licence
Services
Centre manager and supervisor : DLTC respectively. Moleko had acted
in the first mentioned post since 2002 and Mokoena
in the second
post since October 2003. The posts were advertised in July 2006 and
appointments were made with effect from the
September 2007. Neither
of the individual respondents were successful in being appointed to
the posts they applied for. By the
time the arbitration hearing took
place, Moleko had already resigned as a result of an injury
sustained in May 2008.
The respondents and five other candidates were shortlisted for four
positions as Licence Service Centre Managers and were interviewed
together with five other candidates. They were interviewed on 20
December 2006 by a selection panel consisting of four members.
In
terms of the scores they achieved Mr Moleko was ranked second and Ms
Mokoena ranked fourth out of the eight candidates interviewed.
Between March and June 2007 all the short listed candidates also
underwent competency and polygraph testing, to which they had
consented in writing. Korb, the Licensing Manager, testified that
all the candidates were asked at the end of each of their interviews
if they had any objection to undergoing competency and polygraph
tests. The respective interview scores and polygraph results
of the
eight candidates interviewed are set out below
Candidate
Interview score
Polygraph outcome
Appointed
Mr M A Msibi
438
Passed
Yes
Mr M N Moleko
430
Failed
No
Mrs E van Zyl
390
Passed
Yes
Mrs L Mokoena
387
Failed
No
Mrs E Nhlapo
356
Passed
Yes
Mr S Harmse
351
Passed
No
Mrs K van der Merwe
350
Passed
Yes
Mrs L Matsobane
305
Passed
No
In respect of the competency tests only two of the eight candidates
were ‘partially recommended’ in terms of the
summary of
the results appearing in the letter of recommendations drawn up by
Mr Korb. Of the four successful candidates only
one of them was
‘partially recommended’ on the basis of the competency
test, whereas the remaining three were not
recommended on the basis
of competency. All four of the successful candidates passed the
polygraph test. The competency tests
were conducted by examiners who
were not part of the interview panel and the examiner’s
conclusions were captured in the
letter of recommendation drafted by
Korb. In that letter he recorded the competency examiners’
comments on each candidate
as follows:
Mr M A Msibi: “
Based on the fact that Alex
does
not meet most of the requirements
of the role
we
do not recommend him
for the role of the Licence Service
Centre Manager.
"
Ms E van Zyl: "
Elmarie would appear not to be suitable
for the position at this stage. She
shows potential
for further career growth
, providing the training and
coaching supports a long-term development.
"
Ms N.E Molakeng (Nhlapo): "
Elizabeth would appear to be
partially suitable
for the position. She
shows
potential for further career growth
, providing that
coaching supported long-term development, which addresses the areas
of weakness.
”
Ms M C van der Merwe: "
Based on the fact that Martha does
not meet most of the requirements of the role,
we do not
recommend her
for the role of a Licence Service Centre
Manager.
"
(emphasis added)
The more detailed comments relating to the two unsuccessful
employees under consideration and the other unsuccessful candidates
read as follows:
Mr M N Moleko: "
Shows a poor average match to the
competency identified as critical for success
in the
role of a licence service centre manager. Based on the fact that
Mohau does not meet the cognitive requirements for the
role,
we
do not
[recommend]
him for the role
of
Licence Service Centre Manager. However it is clear that
with
some development (specifically of his cognitive skills) that Mohau
shows the ability to be effective in this role
.
”
Ms M Mokoena: “
Based on the fact that
Maria does
not meet most of the requirements of the role, we do not recommend
her
for the role of a Licence Service Centre Manager.
”
Mr I J S Harmse: "
Sakkie would appear to be partially
suitable
for the position. He
shows potential
for further career growth
, providing that coaching
supported long-term development, which addresses his areas of
weakness.
”
Ms L Motsobane: "
Lebo would appear to be not suitable
for the position at this stage. She
shows potential
for further career growth
, providing the training and
coaching support to long-term development.
”
(emphasis added)
Korb said that candidates were shortlisted for interviews on the
basis of their qualifications, experience and knowledge of the
work,
which determined if they satisfied the criteria. These factors
played no further role in the selection process once the
shortlist
had been compiled, except that it turned out later that Harms’
qualifications were not equivalent to the required
grade 12
certificate.
The municipality contended that even though the polygraph and
competency tests were not set out as prerequisites in the
advertisement
of the posts, omitting to mention them did not exclude
such factors being taken into account in making the appointments. It
maintained
that the polygraph test was a reasonable and fair
criterion to take into consideration in deciding whether or not to
appoint
them. However, the employees contended that the failure to
pass the polygraph test was the sole reason for not appointing them.
Insofar as there is a factual dispute between the parties, it
concerns whether the latter assertion is correct. In this regard,
the evidence of Mr Korb was relied on by both parties. The following
extracts from the record are pertinent:
“
Mr van Wyk: Then we get to Mr Maleko at
the bottom of the page and you see that, I see that you did not
recommend him.
Mr Korb: That is correct.
Mr van Wyk: How did you arrive at that recommendation?
Mr Korb: Based on the polygraph test that Mr Maleko failed.
Mr van Wyk: If it were not for the polygraph test would your
recommendation have been different?
Mr Korb: Surely it would have.
Mr van Wyk: What would your recommendation have been?
Mr Korb: To tell this panel the honest truth all top applicants
would have recommended for appointment.”
(sic)
Korb further testified that the polygraph test was important enough
to change a decision based on interview scores because the
test was
meant to indicate their honesty and integrity, which both the
employees failed. Later in Mr Korb’s testimony in
cross-examination, the following exchange occurred:
“
Mr Nkoenyane: You testified that the
four people other than the polygraph test should have been the people
who could have been appointed.
Is that correct?
Mr Korb: I said if it was not for the polygraph test the 4 first
candidates would have been appointed.”
(
sic
)
The arbitrator found that both the employees were better candidates
than the other applicants who were appointed and they had
higher
qualifications than the other candidates, apart from the fourth
respondent, Mr Van der Merwe. He also found that the individual
employees’ testimony that they did well when interviewed was
not disputed by the municipality. Crucially, the arbitrator
held
that the reason they were not appointed was because they failed a
polygraph test.
It had not been stated as a requirement in the advertisement of the
posts that applicants would be required to undergo a polygraph
tests
and the arbitrator found that it was unfair of the applicant to
introduce the test as a criterion since it had not been
stated in
the advertisement.
The arbitrator then ordered that the applicant should pay Mokoena
the salary and benefits she would have received had she been
appointed to the advertised position with effect from 1 October 2007
and made a similar order in respect of Mr Moleko. In addition
he
awarded them each a year’s salary at the lowest scale of a
licence service centre manager.
Grounds of review
Firstly, the applicant contends that the dispute over the failure to
appoint the employees to positions as License Service Centre
managers was not a dispute about promotions. In construing the
dispute as a promotion dispute, the arbitrator acted unreasonably
and irrationally.
A closely related ground of review, if indeed it is distinct from
the first, is that the arbitrator did not arbitrate the dispute
that
had been referred to conciliation, which was not a promotion
dispute. In support of this claim, the applicant attached the
referral form requesting conciliation of the dispute. In paragraph 3
of the form, the employees summarised the facts of the dispute
referred in the following terms:
“
The two applicants acted for senior
position six years but the employer failed to appoint them.”
(
sic
)
The result of conciliation sought by the employees was recorded in
the referral form as:
“
Permanent appointment to the post they
acted and applied for.”
In describing special features or additional information pertaining
to the dispute in paragraph 8 of the form, the employees
stated:
“
The selection and the interview process
was flawed in all respect.”
(
sic
)
Secondly, the applicant contended that the arbitrator had not
considered the circumstances leading to the appointments, namely
that all the candidates were treated the same and the tests to which
they were subjected were fair, consistent and reasonable.
Instead of
focussing on the fairness of the process, the arbitrator acted as if
he was an employment agency.
Thirdly, the arbitrator misdirected himself in finding that it was
unfair of the employer to introduce polygraph testing as a
criterion
when that was not one of the pre-requisites set out in the
advertisement. The applicant argued that the polygraph testing
was
merely part of the process leading up to the appointments which the
employer was not obliged to spell out.
Two additional grounds of review were provided in the employer’s
supplementary affidavit. The fourth ground of review was
that the
arbitrator failed to take account of the fact that the polygraph
test was only one of the criteria that was introduced
whereas the
competency test was also something which was introduced during the
selection process.
Lastly, the arbitrator should not have interfered with the
applicant’s ‘prerogative’, without showing that
the applicant had not applied its mind to the selection.
In the applicant’s heads of argument it was further argued
that the arbitrator had exceeded his jurisdiction by ordering
payment of one year’s salary as well as ordering the applicant
to pay the employees the difference between their actual
earnings
and what they would have received if they had been successful.
Evaluation
When the matter came to be argued, the applicant did not persist
with all the stated grounds of review. Only those grounds that
were
still advanced at the hearing are considered.
The nature of the dispute
The applicant, correctly, abandoned the contention that the matter
did not concern a promotion dispute. Nevertheless, it maintained
that the issue decided by the arbitrator, namely the fairness of
using a polygraph as a selection tool, was not the issue before
him.
The applicant contended that neither the referral to conciliation,
nor SAMWU’s letter of complaint to the Municipal
Manager of 4
August 2007 mentioned the polygraph testing as an issue in the
dispute. Rather, the thrust of the complaint referred
by the
employees concerned the manner of making the appointments coupled
with a claim based on a reasonable expectation of appointment
arising from the employees having acted in the positions applied
for.
I agree that the significance which the polygraph testing acquired,
was not something foretold in the dispute referral but at
that time
it appears that the employees had not had sight of the report
containing the recommendations of Mr Korb, in which the
importance
of the polygraph test results in the appointment process becomes
obvious. I do not see why the employees should have
been precluded
from relying on evidence which only came to light after the
conciliation in support of their claim that they were
unfairly
refused appointment. The particular facts cited in support of their
claim in the referral form could not confine them
only to a
consideration of those facts. In my view it is sufficient that they
made it clear that they believed they ought to
have been appointed
and that they claimed the process of appointments was flawed. That
laid a basis for contesting the substantive
and procedural fairness
of the matter.
Did the arbitrator misdirect himself on the issue to be
decided?
The municipality argued that the arbitrator misdirected himself in
asking if it was fair to introduce a polygraph test as a criterion
without mentioning it in the advertisement. Instead, the arbitrator
should have asked whether or not it was fair to decline appointment
of the employees based on a policy of using polygraph testing as a
way of measuring the honesty of candidates, in the context
of making
appointments to senior positions requiring a high degree of
integrity. According to the applicant, by failing to address
this
issue, the arbitrator’s reasoning was irregular. Further, his
conclusion that the failure to mention the polygraph
testing in the
advertisement determined the unfairness of the promotions was in
fact an irrelevant consideration in determining
the fairness of the
appointments.
The municipality argued that it was not obliged to spell out every
factor that might be taken into account in the selection process
in
the advertisement. I agree, that not every consideration that is
taken into account needs to appear in the advertisement,
though it
is certainly preferable to mention upfront a factor that might
completely disqualify a candidate. However, I am inclined
to agree
that the arbitrator did misdirect himself in emphasising the
importance of the criterion not being advertised, whereas
the real
issue in dispute between the parties was whether, or alternatively
to what extent, the municipality could have regard
to the outcomes
of the polygraph tests in deciding on the appointments. It is clear
from the opening statements of employees’
representative at
the arbitration hearing that it was the role played by the polygraph
results, and not the failure to mention
them in the advertisement,
as such, which lay at the heart of the dispute.
Consequently, the arbitrator’s finding that the municipality
committed an unfair labour practice by not stating in the
advertisement that passing a polygraph test was a pre-requisite for
appointment should be set aside given the true nature of
the dispute
between the parties. It must also be mentioned that the respondents
did not really dispute this ground of review
with any conviction.
The finding that the reason the employees were not appointed
was simply because they failed the polygraph test
The applicant argued that passing the polygraph test was a
necessary, but not sufficient, condition for appointment to the
vacant posts. In this regard it was suggested that the polygraph
testing was but one of a number of factors considered, and it
could
not be said that the appointments were based solely on the polygraph
results. The arbitrator should not have decided which
factor ought
to carry more weight.
Clearly, there were other factors that were taken into consideration
by the selection panel in deciding who should be recommended
for
appointment. For example, the applicant’s qualifications,
competency and the interview scores were also factors which
were
taken into consideration. However, it is clear from Korb’s
evidence, mentioned above, that but for the polygraph results,
the
two employee would have been recommended for appointment based on
their interview scores. In finding that the polygraph test
was
decisive by disqualifying the two employees the arbitrator was not
setting himself up as a selection panel or deciding which
factor
should carry more weight. He was merely reflecting how the
municipality arrived at its decision. There is nothing irregular
or
irrational about his finding based on the evidence before him.
The arbitrator’s award of compensation
From paragraphs 9.1 and 9.2 of the award it is apparent that Moleko
was awarded compensation of 12 months’ remuneration
at the
lowest pay scale of the advertised post and over and above that she
was to be paid the difference in her actual salary
and that of a
licence service centre manager with effect from 1 October 2007.
Consequently, Moleko would have received more financial
recompensetion than she would have obtained if she had been a
successful candidate. The same can be said of the relief granted
to
Mokoena.
Ms Gaibie, appearing for the employees, argued that such relief was
competent under s 193(4) of the LRA, which empowers an arbitrator
to
make an award on terms that the arbitrator “deems reasonable,
which may include ordering reinstatement, re-employment
or
compensation”. The employees argued that the order to pay the
difference between the salaries received and those they
would have
received was not compensatory in nature. In support of their
argument they cite the case of
Willemse v Patelia NO &
others
(2007) 28
ILJ
428 (LC)
in
which the court ordered the employer to pay the employee the salary
and benefits he would have received if he had been appointed
to the
post he applied for. So called “protective promotion”
orders of this nature are not uncommon, but are not
coupled with an
additional award of compensation.
The arbitrator provided no reason for the two-pronged relief he
granted, and there is nothing in his summary of the facts of
the
case to suggest that the matter before him justified the
extraordinary relief granted. Irrespective of whether or not the
two
forms of relief exceeded the arbitrator’s power to award
compensation, it is difficult to see how any reasonable arbitrator
could order relief of such magnitude in the circumstances, and
accordingly his orders in paragraphs 9.2 to 9.4 of the award must
be
set aside.
Appropriate relief
As the arbitrator’s substantive finding on what made the
failure to appoint the employees unfair and the relief awarded
is
set aside, the question arises whether this matter should be
referred back to another arbitrator. As the record was complete
and
the dispute goes back a considerable time, it would be undesirable
to refer the matter back, and it is more appropriate to
substitute
the court’s own findings for that of the arbitrator.
Merits reconsidered
The essence of the dispute about the fairness of the failure to
appoint the employees is whether the employer was entitled to
rely
on the polygraph test results to disqualify them for appointment in
circumstances in which they would otherwise have been
employed based
on their interview scores. It is apparent that the results of the
competency test played no role in the selection
process provided a
candidate’s interview score was one of the four highest.
Addressing the significance of the polygraph testing, applicant’s
counsel, Mr Brassey, argued that if it was legitimate
to make
subjective assessments of candidates in the interview process and if
the interview process could legitimately include
questions aimed at
ascertaining a candidate’s integrity, then there was no
inherent reason, in principle, why polygraph
testing could also not
be used as a means of assessing honesty. Although he conceded that
polygraph testing was highly controversial
and inappropriate as the
sole measure of guilt in the context of dismissal disputes, he
argued that this did not mean polygraph
testing could not be used as
a legitimate assessment tool. In support of this contention, the
applicant argued that the courts
have not held that polygraph test
results are something an employer cannot take account of.
It followed therefore that the courts have implicitly recognised
that polygraph test results do have some probative value and
are not
worthless. Consequently, polygraph testing may be used as a
legitimate tool in considering promotions. I agree that such
an
approach would not seem to be at odds with the jurisprudence
discussed below.
Both parties referred to the decision of this court in
Truworths
Ltd v Commission for Conciliation, Mediation and Arbitration
(2009)
30
ILJ
677 (LC)
. In her judgment Basson J
usefully summarised the status and treatment of polygraph test
results as evidence:
“
[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
.
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;
(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 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 Makhubela (2000) 9 ARB
8.8.3 GAAR003888; NUMSA obo 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 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.
[38] I have already made reference to the fact
that it appears from the award that the commissioner completely
ignored the outcome of the polygraph test in circumstances where a
trained polygraphist testified at the arbitration and explained
the
results of the polygraph and the manner in which the test was
conducted.
Although these types of tests should be approached with
caution
,
at the very least the commissioner ought to have
considered the outcome of the polygraph test as part and parcel of
the totality
of evidence which had to be weighed up in assessing the
probabilities
. If the commissioner was of the view that the
polygraph test should not be taken into account or that it was not
relevant then
she should not have drawn a negative inference from
Breytenbach's perceived refusal to take a polygraph test as
indicative of possible
knowledge of the missing watches. She should
also not have drawn a negative inference in respect of Beytenbach's
credibility if
she was of the view that the polygraph test was
irrelevant.”
(emphasis added)
More recently and in a similar vein, the Labour Appeal Court found
nothing untoward about an arrangement in terms of which the
representative union had agreed that its members could be removed
from their baggage handling duties if they failed a polygraph
test,
even in the absence of any independent evidence of theft.
1
However, it is important to note that in the
Khulani Fidelity
case the union had not only agreed that polygraph testing could be
conducted on a regular basis, but also that the employer was
entitled to transfer members out of baggage handling posts solely on
the basis of the test result.
In two other recent decisions of this court,
judges have accepted expert evidence to the effect that polygraph
tests are not a
reliable indicator of deceipt. The following extract
from the judgment of Steenkamp J in
National
Union of Mineworkers & Others v Coin Security Group (Pty) Ltd
t/a Protea Coin Group
(2011)
32
ILJ
137 (LC)
encapsulates
what was said by Basson J in
Food
& Allied Workers Union on behalf of Kapesi & others v
Premier Foods Ltd t/a Blue Ribbon Salt River
(2010)
31 ILJ 1654 (LC)
“
[29] Professor Tredoux,
the head of UCT's department of psychology, has provided a detailed
report on the reliability
of polygraph testing. He gave similar
evidence in the FAWU matter where that court found him clearly to be
an expert in the field
of polygraph testing and a 'highly competent
and respected expert' with 'extensive and impressive qualifications'.
(I pause to
note that the court in Khulani did not have the benefit
of any expert evidence on polygraph tests.)
Tredoux's
report shows that polygraph testing has not been scientifically shown
to be a reliable, accurate and valid means of detecting
deception. It
follows that polygraph test results cannot be a 'fair and objective'
basis for selecting who should be dismissed
.
In fact, this court held in FAWU that:
'In the
light of the aforegoing and in the light of the controversy that
surrounds the accuracy and reliability of polygraph tests,
I am not
persuaded that the polygraph is a reasonable or fair alternative to
minimize retrenchment.... In the context of a disciplinary
process
the polygraph can be a useful tool in the investigation process but
can never substitute the need for a disciplinary hearing.
A polygraph
test on its own cannot be used to determine the guilt of an
employee.... I am, as already pointed out, not persuaded
that it
constitutes a fair and objective selection criteria or a fair and
objective method alternative to minimize retrenchment
in the context
of s189 and s 189A of the LRA.'
[30] The respondent has not explained in its
pleadings what benefit its 'client' derives from its use of polygraph
testing. It has not, on the pleadings, shown that it was either a
fair and objective selection criterion or, as was the case in
Khulani, an agreed one.”
2
(emphasis
added)
Even if polygraph test results may constitute relevant material in
determining a person’s integrity, the question remains
whether
it is fair to rely exclusively on them as a touchstone of integrity
in the recruitment context, where the prejudice to
an applicant that
might follow rejection on account of a polygraph test is not the
same as that of an employee facing a dismissal.
In this case, there
was no other independent evidence that the two employees were
previously implicated in some wrongdoing or
corruption. It might be
said that because the consequence of not being promoted is less
serious than being dismissed, an employer
is entitled to place
greater reliance on polygraph testing as a one method of assessing
job applicants, despite its unreliability.
However, in this
instance, it was the sole reason for not appointing candidates who
would otherwise have succeeded, thereby making
it not merely one of
many factors to weigh up, but a deciding one. In such circumstances,
the same concerns about its reliability
as an accurate measure of
deception which make courts hesitate to accord it a decisive impact
in disciplinary cases, ought to
raise similar concerns when
eliminating candidates who would otherwise be appointed.
Consequently, I am of the view that the exclusive reliance on the
polygraph test results to eliminate candidates for appointment
on
the basis of their deceitful character, in the absence of any other
information placing a question mark over their integrity
is unfair.
Relief
I have indicated my concerns with the relief originally granted. It
seems to me that a more reasonable solution would place the
employees in the same financial position they would have been if
they had been appointed on 1 October 2007.
Costs
Although the applicant was successful in having aspects of the award
set aside, the employees are ultimately successful in their
claim.
Consequently, it would be fair to both parties that they each bear
their own costs.
Order
The sixth respondent’s findings on the reason for the
applicant’s failure to appoint the employees to the posts of
licence service centre managers in paragraph 9.1 and the relief he
awarded to the employees in paragraphs 9.3 and 9.4 of his
award
issued in May 2009 under first respondent’s case number GPD
090602, are set aside.
The arbitrator’s findings and relief set out in paragraphs 9.1
to 9.4 of the arbitrator’s award are replaced with
the
following:
The applicant committed an unfair labour practice relating to
promotion in relying exclusively on the result of a polygraph
test
to determine the honesty of the candidates.
The applicant must pay Mr M W Moleko and Ms M Mokoena the
difference between the remuneration they received from 1 October
2007 and the remuneration they would have received if they had been
promoted to posts of License Service Centre managers from
that date
at the lowest pay scale for that post.
The applicant must pay the said amounts within 15 days of the date
of this judgment.
No order is made as to costs
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: MSM Brassey, SC instructed by Mashile Twala Inc.
SECOND RESPONDENT: S Gaibie of Cheadle, Thompson & Haysom
1
SA
Transport & Allied Workers Union & Others v Khulani Fidelity
Security Services (Pty) Ltd
(2011) 32
ILJ
130 (LAC)
at 134J-136C
2
Coin
Security
at 146