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[2013] ZALCJHB 42
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IDWU obo Motswagae v National Bargaining Council for the Road Freight Industry and Others (JR 2460/10) [2013] ZALCJHB 42 (6 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case no: JR 2460/10
In the matter between:
IDWU obo JOSEPH MOTSWAGAE
....................................................................
Applicant
and
THE NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT INDUSTRY
.........................................................
First
Respondent
MNCEDISI SIHLALI
..........................................................................
Second
Respondent
CAREFUL
CARRIERS (PTY) LTD
........................................................
Third
Respondent
Heard: 07 January 2013
Delivered: 06 March 2013
Summary: Admissibility of polygraph test. Considerations when
faced with mutually exclusive versions.
judgment
NAIDOO AJ
Introduction
[1] This is an application to review and set aside an arbitration
award made by the second respondent (the arbitrator) under case
number GPRFBC11696/10, in terms of which the applicant’s
dismissal was found substantive fair. The application is opposed
by
the third respondent.
Background facts
[2] The applicant commenced his employ with the third respondent on
07 September 2009 as a driver and was dismissed on 29 March
2010
having been found guilty of working, more particularly driving under
the influence of alcohol. On the day of the alleged incident
the
applicant, while accompanied by others, drove a truck delivering
fridges to certain clients of the third respondent.
[3] The applicant referred an unfair dismissal dispute to the first
respondent. His matter came before the second respondent on
01
September 2010.
Evidence led at arbitration
[4] At arbitration the third respondent led four witnesses. The first
two witnesses, S Steenkamp and W White testified primarily
on the
investigations they led once alerted to the applicant’s alleged
misconduct. The third respondent further called a
one I Maliseni, an
employee of the third respondent’s client who accompanied the
applicant on the day in question. Maliseni
testified to his
observations on the said day, which included witnessing the applicant
consuming alcohol given to him by a customer
at the latter’s
premises and further that the applicant appeared intoxicated while
driving. Maliseni went onto state that
the applicant was driving
erratically, to the extent Maliseni requested the applicant drop him
off before their deliveries were
complete, fearing the applicant
would cause an accident. A polygraphist, M Broomhead also testified
on behalf of the third respondent.
Broomhead testified to his
experience and the instrument used in testing the applicant, the
results of which indicated the applicant
was deceptive when asked
whether or not he consumed alcohol while on duty on the date of the
alleged incident.
The applicant was the only person to testify on his behalf wherein he
denied consuming alcohol or that he was intoxicated. As to
why
Maliseni was dropped off before their deliveries were done, the
applicant stated Maliseni wanted to finish early that day.
With
regard to being offered alcohol by a client, the applicant denied
same but alleged a client did give him a bottle of Stoney
Ginger
Beer, which he and the others shared.
The award
[5] The arbitrator, in somewhat of a short analysis, accepted the
third respondent’s version over that of the applicant’s.
In his reasoning, the arbitrator relied on the fact that the
applicant failed to cross examine Maliseni on crucial aspects of his
testimony and further to this, the third respondent led an
investigation before finding the applicant guilty of the charge put
to him. On the second reason the arbitrator held the following in his
award;
‘
The
evidence of the respondent in this matter is the most probable as the
respondent took steps to investigate the complaint against
the
applicant. Further, the respondent also relied on direct evidence of
Mr. Maliseni who was present when this event took place’
Grounds of Review
[6] Mr. Morgan, the applicant’s representative appointed by the
Pro Bono office was, for the first time, instructed to represent
the
applicant on the day this matter was heard. The applicant was
initially represented by his union, IDWU, which had been deregistered
by Registrar of the Department of Labour sometime in 2011. This court
is grateful to Mr. Morgan for his efforts in assisting the
applicant
especially on such short notice.
[7] The review application was brought on three grounds, namely the
arbitrator committed a gross misconduct by;
a) accepting the testimony of Steenkamp and White, when in fact their
respective testimonies amounted to hearsay evidence and on
that
ground, should have been held inadmissible,
b) accepting the evidence of the polygraphist contrary to the
jurisprudence governing the admissibility of such evidence,
c) failing to appreciate the legal principle that when faced with two
mutually exclusive versions, a party on which the onus rests,
must
fail. Alternatively the applicant’s version was more probable
given the contradictions in Maliseni’s testimony.
Evaluation
[8] On the first ground, it can hardly be said that both Steenkamp
and White led only hearsay evidence. It is apparent that once
advised
of the applicant’s alleged misconduct they launched an
investigation in an attempt to verify the veracity of the
allegations. At arbitration it was this very investigation which both
testified to, including how they became aware of the allegations.
While it is correct their testimony on what clients advised them when
asked whether they gave the applicant any alcohol would be
construed
as hearsay evidence, this was not, as I read the award, a significant
part of their respective testimonies. I am therefore
at odds with the
argument that their entire testimony should be considered hearsay or
that their testimony, as a whole should have
been inadmissible on
grounds of the hearsay evidence tendered. Both Steenkamp and White
led direct and relevant evidence with regard
to their investigation.
The arbitrator cannot be faulted for relying on their respective
testimonies to the extend he did.
[9] As evident from the arbitrator’s notes, the polygraphist,
Broomhead, testified to his experience, including the number
of tests
he conducted over a specific period of time and to the instrument
used. The admissibility and probative weight of a polygraph
test was
discussed in
Truworths LTD v Commission for Conciliation,
Mediation and Arbitration and Others,
1
wherein the court said the following
‘
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.’
[10] The testimony of Broomhead satisfies the admissibility of such
evidence and there is nothing in the arbitrator’s award
to
conclude he was not alive to this test or that he accepted the third
respondent’s version on the sole basis of the polygraph
test
results.
Ms. Wessels, appearing for the third respondent suggested that the
arbitrator did not take into account the evidence of Broomhead
on the
basis that he does not specifically mention such evidence in his
analysis. While this argument seems to lend support to
the
applicant’s argument, in that the arbitrator had before him two
mutually exclusive versions, I am not convinced the arbitrator
did
not take into account Broomhead’s evidence. The arbitrator
accepts the third respondent’s evidence based on its
investigations and the direct testimony of Maliseni. It is well
accepted that undergoing a polygraph test and the results thereof
form part of an investigation. To take the view that an investigation
into alleged misconduct of an employee and a polygraph test
performed
on the same employee are independent of each other would be
irrational. Turning to the merits of this matter and in support
of my
view, the polygraph test was performed on 04 March 2010 while the
applicant was only handed notification to attend a disciplinary
enquiry on 10 March 2010
[11] In accepting the evidence of Broomhead, which he was correct in
doing, the arbitrator had before him the version of the applicant,
weighed against the direct testimony of Maliseni and the
corroborating evidence of Broomhead. The arbitrator cannot be faulted
for accepting the third respondent’s version on this basis.
[12] The third ground for review is intrinsically linked to the
success of the first two grounds. I say this because if the applicant
is unsuccessful on the first two grounds, which I have already found
him to be, it can hardly be argued that the arbitrator had
two
mutually exclusive versions before him and with that the third ground
of review fails automatically. For the purpose of being
thorough I am
willing to assume the arbitrator had total disregard to Broomhead’s
evidence as well as that of both Steenkamp
and White’s
testimony and only considered the applicant’s version against
Maliseni’s version. I would nevertheless
come to the same
conclusion in dismissing the third argument raised. While I accept
the legal principle which sees the party on
whom the onus rests
failing in circumstances when two mutually exclusive versions are
presented, the trigger for this principle
is the fact that both
versions are equally plausible and probable taking into account a
host of considerations.
On this point the Supreme Court of Appeal in
SFW Group Ltd and
Another v Martell ET Cie and Others
,
2
held the following of its judgment;
‘
On the
central issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number of peripheral
areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving factual
disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness.
That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness' candour
and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external
contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular aspects of his version,
(vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident or events.
As to (b), a witness'
reliability will depend, apart from the other factors mentioned under
(a)(ii), (iv) and (v) above, on (i)
the opportunities he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his
recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version
on each of the disputed issues.
In the light of the assessment of (a), (b) and (c) the court will
then, as a final step, determine
whether the party burdened with the
onus of proof has succeeded in discharging it.'
Similarly the court in
National Employers General Insurance Co Ltd
v Jagers
3
held:
'In a civil case the onus is
obviously not as heavy as it is in a criminal case, but nevertheless
where the onus rests on the plaintiff
as in the present case and
where there are two mutually destructive stories, he can only succeed
if he satisfied the court on a
preponderance of probabilities that
his version is true and accurate and therefore acceptable, and that
the other version advanced
by the defendant is therefore false or
mistaken and forced to be rejected. In deciding whether that evidence
is true or not the
court will weigh up and test the plaintiff's
allegations against the general probabilities. The estimate of the
credibility of
a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and, if the balance
of
probabilities favours the plaintiff, then the court will accept
his version as being probably true. If however the probabilities
are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the defendant, the plaintiff
can only
succeed if the court nevertheless believes him and is satisfied that
his evidence is true and that the defendant's version
is false.'
[13] The arbitrator did not accept the applicant’s version for
reasons that he failed to cross examine Maliseni on crucial
aspects
of the latter’s testimony and on the basis that he failed to
call the person or provide any explanation as to his
failure to do
so, whom he alleged would confirm his version. Further to this the
arbitrator found the applicant’s version
amounted to a bare
denial of the charges put to him. There is thus clear indication that
in assessing the evidence before him the
arbitrator took into account
certain relevant factors in accepting Maliseni’s version over
that of the applicant’s.
On the point of Maliseni
contradictions, it was argued that Maliseni, at the internal hearing,
said the applicant drank Reds Cider
while at arbitration he said the
applicant drank another type of beer. Further to this Maliseni said
they delivered 6 fridges before
being asked to get off, while at
arbitration he said they delivered 9 fridges. I do not find these
contradictions material as they
do not have any direct bearing on the
matter at hand nor can it be relied on to discredit Maliseni’s
version to the extend
the applicant’s version should be
accepted over his.
[14] In light of the above, the application is dismissed. On the
issue of costs, it was common cause that the applicant had a cost
order against him on the previous sitting of this matter. In taking
into account justice and fairness, I am of the view that each
party
should bear their own costs.
Order
[15] In the premises the following order is made:
15.1. The application to review and set aside the arbitration award
under case number GPRFBC11696/10 is dismissed.
15.2 There is no order as to costs.
_______________
Naidoo, AJ
Acting Judge of the Labour Court
APPEARANCES
For the Applicant: Mr Morgan
For the Third Respondent: Ms E Wessels
1
(2009)
30 ILJ 677 (LC) at paragraph 37.
2
2003
(1) SA 11
(SCA) at para 5.
3
1984
(4) SA 437
(E) at 440D-441A.