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[2013] ZALCJHB 24
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Mustek Ltd v Tsabadi NO and Others (JR 2732/2010) [2013] ZALCJHB 24; [2013] 8 BLLR 798 (LC) (2 March 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No JR 2732/2010
In the matter between:
MUSTEK LTD
..............................................................................................................
Applicant
and
JOSEPH TSABADI NO
..................................................................................
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.............................................................
Second
Respondent
MOLOMO SYDNEY LETSOALO
.................................................................
Third
Respondent
Heard: 9 January 2013
Delivered: 2 March
2012
Summary: The employee
was dismissed for the misappropriation of company property on a
polygraph test. It was argued that the commissioner
failed to
consider corroborative evidence. This was found to be factually
misleading. The review application was dismissed.
JUDGMENT
SEEDAT AJ
Introduction
[1] This is an
application to review and set aside the award made by the first
respondent (the commissioner) under case number GATW
6875-09 dated 23
August 2010 in terms of which the commissioner found the dismissal of
the third respondent (the employee) on a
charge of misappropriation
of company property to be without a fair reason and therefore unfair.
The procedural fairness of the
dismissal was not in dispute.
Background
[2] The employee was
employed as a service technician by the applicant. His duties
entailed repairs to laptop computers and other
electronic equipment.
[3] There are a number of
sections on the premises of the applicant one of which is the bulk
store where the computers and related
products are kept. The other is
the production area which is the section for the building of personal
computers and laptops. The
employee had access to both sections.
[4] In the period between
25 March 2009 and 30 March 2009 eight laptops went missing from the
bulk store and nine laptops from the
production area. The computers
were not found after a full search of the premises. A review of the
video footage did not reveal
anything untoward or suspicious.
[5] Management then
resolved that all staff who worked in the two areas during that
period should be subjected to a polygraph test.
The employee was
included because he had come to work on that weekend. All together
sixty-seven employees were polygraphed. Of
these six failed the test
and a second test was done. Four of the six, including the employee,
failed the test again. Charges were
preferred against the four and
all of them were dismissed.
[6] Three of the
employees collectively referred their dispute to the second respond
while the employee did so on his own. The dismissals
of the three
employees were confirmed in a separate hearing before one
commissioner. In the case of the employee, another commissioner,
the
first respondent, found that his dismissal was substantively unfair.
The grounds of review
[7] The applicant seeks
to set aside the award on multiple grounds the most important of
which are:
‘
The award is
not justifiable in relation to the reasons given for such award, and
such award is not rational in its merit or outcome.
The award is
simply not a determination a reasonable decision maker could arrive
at;
The [commissioner] failed to properly,
justifiable and reasonable (sic) determine the evidence properly
before the [commissioner]
(sic).’
The other grounds simply
elaborated on or supplemented these reasons.
Polygraph testing
[8] Mr Groenewald, a
director of the Polygraph Institute of South Africa, testified on
behalf of the applicant. He is a member of
the American Polygraph
Association and has many years of experience in this discipline. He
explained that a polygraph is based
on the principle of fear of being
caught out. A number of questions are posed to the examinee and if
that examinee is threatened
by a question, his body will react
subconsciously. His breathing will be quicker, his heart rate will
increase and his blood pressure
will rise. Prior to the actual test,
he discusses the questions with the examinee and a dummy test without
recording anything is
done. Mr Groenewald testified that in 250
studies throughout the world, ‘they [?] came to the conclusion
that the accuracy
[of a polygraph] is 97%. If I may just add that
doesn’t mean that in 3% of the cases it’s wrong, it just
means that
3% of the cases give you an inconclusive result’.
But surprisingly adds that in the case of the employee ‘it
wasn’t
inconclusive’. Mr Groenewald gives no reasons for
this confounding conclusion.
[9] In their paper
‘Polygraph Based Testing of Deception and Truthfulness: An
Evaluation and Commentary’ (2001) ILJ
819, Colin Tredoux and
Susan Pooley write at pages 824-5:
‘
The
polygraph is merely a device that measures and records
electro-physiological activity... including differential blood
pressure,
heart rate, respiration rate and skin conductance
(subcutaneous sweating)…However, the polygraph cannot and does
not measure
deception or lying, or the absence of deception or lying.
It merely records physiological activity, and any attempt to use it
to
detect deception involves drawing an
inference
from the physiological activity that it records.’ (emphasis
supplied)
[10] Our courts have
approached the use of the polygraph results with much
circumspection.
1
and it is now accepted
that ‘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’.
2
In
Food
and Allied Workers Union on behalf of Kapesi and Others v Premier
Foods Ltd t/a Blue Ribbon Salt River,
3
Basson J:
‘
I am in
agreement that polygraph testing, as it presently stands, can do no
more than show the existence or non-existence of deception…At
best the polygraph test can prove that a person lies, not that he is
necessarily guilty of a crime or misconduct…A polygraph
test
on its own cannot be used to determine the guilt of an employee. In
the context of an arbitration, the results of a polygraph
can be
taken into account where other supporting evidence is available…’
The award
[11] Relying on these
established principles, the commissioner concluded that:
‘
The only
evidence at [the applicant’s] disposal that culminated in the
dismissal of the [employee] was his failure to pass
the polygraph
test that he underwent twice. I am with the greatest of respect in
agreement with the [employee’s] proposition
that polygraph test
results on their own are wholly insufficient to justify the dismissal
of an employee. The polygraph test results
could be used in
conjunction with other forms of evidence to justify the dismissal of
an employee. The polygraph test results on
their own cannot justify
the dismissal of an employee.’
[12] The applicant argues
that it was not only the polygraph test results that tied the
employee to the missing laptops but three
vitally corroborative
pieces of evidence which the commissioner had ignored:
Access to the stores
and production area
The applicant argued that
the employee had full access to both sections from which the laptops
had disappeared. But there is nothing
peculiar about the employee
having unrestricted movement between the bulk store and the
production area. In his evidence, Mr Carlson,
the warehouse manager
of the applicant, testified that access to the various sections of
the warehouse is not restricted and all
employees can move about
freely.
12.2 Work on Saturday
It was stressed by the
applicant that the employee was at work on Saturday during the
relevant period when it was rare for him to
come to work on a
Saturday. The fact that the employee together with several others
worked on that particular Saturday was nothing
out of the ordinary.
It was not disputed by the applicant that his presence at the
workplace was at the request of his manager.
12.3 Expertise
He had expertise which
was in ‘great demand and it was reasonable to assume that he
built up contacts for the repair and building
of laptops outside his
normal working environment’. While it may be generally true
that the employee has specialised skills
which may be useful to
people outside the workplace, this statement is highly speculative.
There is no evidence that the employee
had cultivated a relationship
with a person or persons outside work. More importantly, the
applicant has not suggested how such
an association would lead and
did lead to the unauthorised removal of the laptops belonging to the
applicant.
All these arguments are
fallacious and fall to be dismissed.
[13] The second ground on
which the applicant sought to assail the award was the fact that ‘it
appeared’ that the commissioner
had ignored the dismissal
finding of the employee’s three colleagues by another
commissioner. First, there is no evidence
that the award of the first
commissioner was brought to the attention of the present
commissioner. Secondly, even if it was so,
it is fatuous to suggest
that one commissioner should complaisantly endorse the findings of
another commissioner where the two
matters have their origins in the
same incident. The rationale for the first commissioner’s
decision has to be analysed.
There can be any number of reasons why
that commissioner arrived at the conclusion he did. To argue that a
commissioner is bound
by the findings of another commissioner is
repugnant to the rules of precedent.
[14] Of course, it is now
established that the test is whether it can be said that, based on
the material presented before the commissioner,
his conclusion was
one that a reasonable decision maker could not have made.
4
This was confirmed by the
Labour Appeal Court in
Fidelity
Cash Management Service v CCMA and Others
5
where it held:
‘
Whether or
not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before the commissioner and what
the issues were before him.’
In
Herholdt
v Nedbank Ltd,
6
the court after approving
its own decision in
Ellerine
Holdings Ltd v CCMA and Others
7
and that of the
Constitutional Court in
CUSA
v Tao Ying Metal Industries and Others
8
confirmed that one of the
duties of a commissioner ‘is to determine the material facts
and then to apply the provisions of
the LRA to those facts in
answering the question whether the dismissal was for a fair reason’.
[15] The only evidence
adduced against the employee was the results of the polygraph test.
The attempt by the applicant to overcome
the requirement that there
was no corroborative evidence to support the inference of guilt from
a polygraph test is factually misleading.
The decision of the
commissioner was one that could certainly have been reached by a
reasonable decision maker. Accordingly there
is no basis for it to be
interfered with on review.
Order
The application for
review is dismissed with costs.
__________________
SEEDAT AJ
Acting Judge of the
Labour Court
APPEARANCES
APPLICANT: Attorney AJ
Posthuma
RESPONDENT: Attorney TS
Magoma
1
Mahlangu
v CIM Deltak; Gallant v CIM Daltak
(1986) 7 ILJ 346 (IC).
2
Truworths
Ltd v CCMA
(2009) 30 ILJ 677 (LC) at para 37.
3
(2010)
31 ILJ 1654 (LC) said at para 111.
4
Sidumo
and Others v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ 2405 (CC) para 110.
5
(2008)
29 ILJ 964 (LAC) at para (2008) 29 ILJ 964 (LAC) at para 109.
6
(2012)
33 ILJ 1789 (LAC) at para 39.
7
(2012)
33 ILJ 1789 (LAC).
8
(2008)
29 ILJ 2461 (CC).