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[2012] ZALCD 15
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DHL Supply Chain SA (Pty) Ltd v De Beer NO and Others (D738/10) [2012] ZALCD 15; [2013] 1 BLLR 20 (LC); (2013) 34 ILJ 1530 (LC) (16 October 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D738/10
In the matter between:
DHL SUPPLY CHAIN SA
(PTY) LTD
........................................................................
Applicant
and
DE BEER, LW N.O
.......................................................................................
First
Respondent
NATIONAL BARGAINING
COUNCIL
FOR THE ROAD FREIGHT
INDUSTRY
.................................................
Second
Respondent
SABELO DUBE AND ENOCH
MASINGA
...............................................
Third
Respondents
Heard: 31 July 2012
Delivered: 16 October
2012
Summary: Review
application- applicant relying on polygraph test results to dismiss
third respondents – circumstantial factors
placed by applicant
at arbitration hearing applicable to all employees including those
not dismissed – review application
dismissed.
__________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is a review
application in terms of sections 145(2) and 158(1) (g) of the Labour
Relations Act
1
(‘the LRA’)
to review and set aside the arbitration award issued by the first
respondent (‘the commissioner’)
on 17 June 2010 under
case number KZNRFBC 4137. The commissioner found that the dismissal
of the third respondent was procedurally
fair but substantively
unfair and ordered the applicant to re-instate the third
respondents, Sabelo Dube (‘Dube’)
and Enoch Masinga
(‘Masinga’) with retrospective effect on the same terms
and conditions prior to their dismissal.
She further ordered payment
of the amounts of R112 657.50 to Masinga and R67 500 to
Dube respectively as back pay.
The answering affidavit
was filed almost 16 months late. The third respondents applied for
condonation only a day before the matter
was heard. No plausible
explanation was given as to the lateness of the filing of the
answering affidavit and the filing of the
condonation application on
the eve of the hearing of the review application. The condonation
application and the opposition thereto
were fully canvassed at the
hearing of this matter. I was not satisfied with the explanation
given by the third respondents given
the excessive delay in the
filing of the answering affidavit. In view of that I dismissed the
condonation application and accordingly
disallowed the answering
affidavit as proper evidence before this Court.
I however allowed the
third respondents to make submissions purely on the papers of the
applicant and on the law.
Facts
The applicant is
involved in the warehousing and distribution of cigarettes.
Cigarettes are apparently known to be a very high
risk commodity
because of their great street value.
The third respondents
had been employees of the applicant until their dismissal on 28
August 2008. They were employed as cage
loaders together with six
other employees.
During the period of
June 2008, the applicant noticed that it was experiencing
substantial increase in stock losses. Approximately
R14 500 worth of
stock was lost over a period of 5 days being 3, 4, 5, 6 and 10 June
2008.
The site has a high
level of security with guards inside the warehouse and at access
gates. Employees are searched before leaving
premises and there are
cameras situated all around the warehouse and on the outside of the
building as well.
Notwithstanding that,
the applicant did lose a great deal of stock, particularly through
hijacks and lost more than R10 million
the previous year. Nobody
knew how exactly the stock was removed or where it went. The video
surveillance did not show any employees
removing the stock and no
employees were caught with stock in their possession.
All employees who were
on shifts during those times (eight in total) were sent for
polygraph testing, including two stock takers,
the cage loaders, the
dispatch clerks and the vehicle loader who took the goods out of the
cage and put them in the truck. Employees
have a clause in their
contracts of employment obligating them to undergo polygraph
testing.
Six of these employees
passed the polygraph test with the exception of the third
respondents who failed. Polygraph test was conducted
by a qualified
polygraph examiner.
An investigation was
then conducted culminating in the dismissal of the third
respondents. The applicant relied on various circumstantial
factors,
which I will deal with later in the judgment and concluded that the
third respondents were guilty of stock loss and
subsequently
dismissed them.
The arbitration award
The commissioner found
that the dismissal of the third respondents was procedurally fair
but substantively unfair.
Referring to case law
dealing with polygraph testing, the commissioner found that the
polygraph examination result is merely one
evidentiary fact and
cannot in itself, prove guilt.
She concluded that if
she had to exclude the adverse polygraph test results, the evidence
against the third respondents would
be 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’
.
The commissioner
inter
alia
found that the fact that the third respondents were on duty
and had access to the stock did not allow her to draw an inference
that they were involved in the removal of the stock, same as the
value of the stock. She went on to state as follows:
‘
At best for
the Respondent the final factor suggests some sort of causal link
between the Applicants and the stock loss but it was
Houston’s
evidence, corroborated by Woodhouse and Shange, that the theft had
not stopped completely since their dismissal
and that they had
suffered R10 million worth of stock loss in 2009. Indeed Woodhouse
stated that it abated for some time but where
“one group left
off, another picked up”. It must 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 Houston’s evidence
that additional security measures had been put in place since June
2008 which might also account
for the reduced stock losses.’
The commissioner
accordingly did not accept this evidence as being sufficient to draw
the most probable conclusion that the third
respondents were guilty
of misconduct.
She found that the
inescapable conclusion was that the applicant relied heavily on the
polygraph test, meaning if the third respondents
had passed the
polygraph test they would not have been dismissed.
Grounds for review
The applicant submits
that the commissioner committed a gross irregularity and acted
unreasonably in the following respects:
She excluded material
facts, by not allowing the most probable inference that the third
respondents participated or were involved
in or had knowledge of the
missing stock. She appears to have reasoned her award largely from
the premise of the exclusion or
reduced value of the polygraph
examination results. According to the applicant, the commissioner
was duty bound to look at the
evidence holistically by applying the
polygraph examination results to the list of circumstantial issues,
which were not limited
to the four issues listed by the
commissioner.
She did not correctly
apply the rules of evidence in that the third respondents failed to
cross-examine the witnesses of the applicant
on pertinent issues
and/or to place a cogent version during cross-examination to the
witnesses of the applicant. The applicant
was accordingly denied a
fair hearing in that despite its version not being tested or
challenged, the commissioner proceeded
to apply her mind in a manner
that resulted in an unreasonable finding.
She seemed to have
considered an irrelevant and speculative version on the consistency
as she failed to take into account that
each case is dealt with on
its own merits. It was thus irregular for her to consider that other
employees who had failed polygraph
before were not dismissed. There
was no evidence presented before her to support this view. Having
noted that there were no specific
examples on the issue of
consistency, it was inappropriate for her to make a finding against
the applicant in that regard.
The commissioner limited
probable inferences to be drawn from uncontested evidence in
particular the evidence that the stock losses
had to be “an
inside job”.
The commissioner failed
to take into account that polygraph examination has largely been
accepted in the rich history of case
law at Bargaining Councils and
the CCMA as a tool to be used and there are guidelines to that
effect. Her explanation as to why
she excluded the polygraphs is
irrational and unreasonable.
She used a stricter test
than what is required in the law of evidence. The inference sought
to be drawn must be one of many inferences,
not the only inference.
She failed to take into
account the two factors namely that stock losses went missing during
the shifts of the third respondents
and dropped significantly after
their departure.
She failed to make a
credibility finding against the third respondents having expressed
reservations on their evidence. The commissioner
had found that the
witnesses of the applicant were clear and unambiguous and did not
waver under cross-examination. She found
that their evidence was
consistent and supported by documents, as well as each other, and
they made concessions when they needed
to do so, there was no
suggestion of fabrication. She accordingly accepted their evidence.
With regard to the third
respondents, she had found that, whilst she had some reservation
about their evidence, when they testified
that they did understand
English or the value of the stock, in light of admissions made under
cross-examination, those reservations
were not such that their
credibility was affected. Their case was supported by other
witnesses all of whom testified about the
tight security measures.
Analysis
The
recent Labour Appeal Court’s decision of
Herholdt
v Nedbank Ltd
2
has
established the legal position and the test to be applied where the
commissioner fails to apply his or her mind on the relevant
and
material facts before him or her. The commissioner in this instance
would have committed a gross irregularity or dialectical
unreasonableness. Dealing with what has become known as process
related unreasonableness, the LAC held as follows:
‘
‘
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby prevented the aggrieved
party from having its case fully and fairly determined. Proper
consideration of all relevant and material facts and issues is
indispensable to a reasonable decision and if a decision-maker fails
to take account of a relevant factor which he or she is bound
to
consider, the resulting decision will not be reasonable in the
dialectical sense. Likewise, where a commissioner does not apply
his
or her mind to the issues in a case the decision will not be
reasonable.’
3
The
question is whether in this case, the commissioner committed any
gross irregularity as outlined above. In order to answer
that,
one
has to look at the pot of evidence before her. It is not enough for
the commissioner to have shown that she gave some thought
to the
facts and issues before her, she must apply her mind properly to
them.
4
The
thrust of the commissioner’s finding is that the results of
the polygraph test cannot on their own be conclusive of
the finding
of guilt, there must be evidence, other than polygraph results to
support such a finding. In essence,
the
commissioner found that nothing separated the third respondents from
the other six employees that passed the polygraph, in
other words,
if they had not failed the polygraph test, they would not have been
dismissed.
The applicant’s
counsel seemed to accept that polygraph results on their own cannot
be conclusive, the applicant’s
argument is that there was
supporting evidence, polygraph results was not the only issue
considered by the applicant when dismissing
the third respondents,
other relevant factors that I have mentioned above were considered.
It therefore argues the commissioner
should have looked at the
polygraph results together with all those other factors and not
determine them separately.
It
is well known that polygraph tests are very controversial. It is
also widely accepted and has been found in this Court many
times
that polygraph testing, although
admissible
standing alone cannot prove guilt.
In
the case of
Food
& Allied Workers Union on behalf of Kapesi and Others v Premier
Foods Ltd t/a Blue Ribbon Salt River,
5
AC
Basson
J held as follows:
“
I am in
agreement that polygraph testing, as they presently stand, can do no
more than show the existence of non-existence of deception.
Even on
this score, scientists are divided. Moreover, it is an accepted
principle in our law that the mere fact that a person lie
(in a
criminal case) cannot in itself prove that the accursed is guilty of
a crime. By no means can it be used as conclusive proof
of guilt of a
crime or misconduct. At best the polygraph test can prove that a
person lied,
not
that he is necessarily guilty of a crime or misconduct.
”
6
(My own
underlining)
AC Basson J, went on
further to state 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...
.'
7
[My
underlining]
I hear the applicant’s
argument that other factors other than the polygraph test results
were placed before the commissioner.
Be that as it may those factors
did not circumstantially point to the guilt of the third
respondents. In other words the polygraph
test results are such that
without them it is virtually not possible to find evidence that
separates the two third respondents
from the rest of the workforce
that was not dismissed.
I do not agree that the
commissioner failed to look at the evidence in its totality,
including the polygraph test results or committed
any gross
irregularity. The commissioner in my view simply analysed the legal
principles on how polygraphs should be treated
as she ought to have
done. Having analysed those principles coupled with the negative
polygraph test results, she asked herself
whether there was any
other evidence supporting a finding of guilt. She looked at that
evidence and came to the conclusion that
but for the polygraph
results there was no other evidence that supported a finding of
guilt.
I do not see anything
untoward with the commissioner’s approach. In fact, the
commissioner spent a considerable amount of
time dealing with each
relevant aspect. The relevant factors she considered were that the
third respondents were at work when
the stock went missing, they
were amongst the group of eight employees who had access to the
stock, the stock was valuable and
that the stock loss dropped
considerably once the third respondents were suspended. I do not
agree that there is any additional
material the commissioner failed
to consider. Clearly if the two employees had not failed the
polygraph test, they would not
have been dismissed as the evidence
presented by the applicant equally applies to the other six
employees that were not dismissed.
I agree that the
commissioner must look at the evidence in its totality. However, in
doing so she has to analyse each factor in
the pot of evidence
before her independently. If she does not do so she might be
criticised of glossing over material evidence
or of failing to apply
her mind to all the relevant factors. The totality of evidence
indicates that there was no valid reason
to find the third
respondents guilty apart from failing the polygraph test.
The commissioner clearly
recognised evidence relating to the considerable decrease in stock
after the third respondents’
departure but she referred to
evidence by a certain Houston, who gave evidence on behalf of the
applicant, which was corroborated
by Woodhouse and Shange. That
evidence tended to nullify the assertion that stock theft almost
stopped with the departure of
the third respondents. The
commissioner also found that it was equally probable that the real
culprits decided to ‘lie
low’ for a while (presumably
due to the disciplinary action taken against the third respondents).
Evidence was also given
that additional security measures were put
in place. Clearly, it cannot be suggested that the commissioner
failed to apply her
mind to these material issues.
Turning to the finding
on consistency. It seems to me that this finding was made after the
commissioner had already found that
the applicant had failed to
bring evidence supporting the polygraph test results. It also seems
that the finding was based on
Houston’s agreement that there
were other employees who failed polygraph tests but were still in
the employ of the applicant.
I agree that it is strange for the
commissioner to have noted that no specific examples of
inconsistency were mentioned by the
third respondents and that this
evidence was not put on applicant’s witnesses but still make a
finding on this issue. This
however does not make her award
reviewable as it does not go to the heart of her findings. It is
clearly a side issue.
The issue of the
commissioner’s failure to make a credibility finding against
the third respondents, whilst having found
the applicant’s
witnesses credible is of no purpose as the material facts were
largely common cause and undisputed. The
real issue was the
admissibility and the use of polygraph test results and whether the
evidence presented by the applicant, undisputed
as it was, supported
an inference that the applicant wanted the commissioner to draw,
which is that third respondents were guilty
of stock loss.
In the circumstances, I
find that the commissioner did a thorough analysis of all the
material facts presented before her. The
criticism brought by the
applicant against the commissioner has no merit. Accordingly, the
commissioner did not commit any gross
irregularity nor is her award
unreasonable in any way. There is, therefore no basis to interfere
with her arbitration award.
The review application can therefore not
succeed.
I do not see a reason
why costs should not follow the result.
I
therefore make the following order:
The review application
is dismissed.
The applicant is ordered
to pay the costs of the third respondents.
__________________
BOQWANA AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANT: Adv F
Venter
Instructed by: Johannes
de Beer Inc., Rent Park Ridge
FOR THE THIRD
RESPONDENTS: Adv D Crampton
Instructed by: PKX
Incorporated, Pietermaritzburg
1
Act
No 66 of 1995.
2
(2012)
33
ILJ
1789 (LAC) (‘
Herholdt
’).
3
Herholdt
at Para 36.
4
Herhold
t
supra at Para 45.
5
(2010)
31 ILJ 1654 (LC)
6
Fawu
supra at para 54
7
Fawu
supra at para 55