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[2014] ZALCJHB 242
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Cashpay Master Services (Pty) Limited v Mashego NO and Others (JR2847/11) [2014] ZALCJHB 242 (12 June 2014)
REPUBLIC OF SOUTH AFRICA
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
HELD AT BRAAMFONTEIN
JUDGEMENT
Case No JR2847/11
In
the matter between:
CASHPAY
MASTER SERVICES (PTY)
LIMITED
............................................................
Applicant
and
COMMISSIONER MICHAEL
LATI MASHEGO
N.O
...........................................
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
......................................................................
Second
Respondent
VELAPI AMOS
MATLAKENG
...............................................................................
Third
Respondent
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
CHAVOOS
AJ:
[1]
This is an application for
leave to appeal against a judgement delivered by this Court on 20
March 2014. In its judgement, the Court
dismissed the Applicant’s
review application on the basis that the arbitration award of the
Second Respondent was one that
could certainly have been reached by a
reasonable decision maker.
[2]
The Applicant has applied
for leave to appeal on the following grounds:
2.1
The
Court erred in failing to take into account the surrounding facts and
circumstances, in addition to the fact that the Third
Respondent
failed a polygraph test;
2.2
The
deletion and removal of files had to have been deliberate and this
deletion could not have taken place accidentally. It
is
contended that this Court erred in not considering the arguments made
by the Applicant that the Third Respondent had a motive
for the
deletion of the documentation as the Third Respondent did not have a
good relationship with the branch manager and certainly
had a motive
for ensuring the ultimate removal of the branch manager;
2.3
The
Third Respondent could not suggest any other individual who may have
been implicated in the misconduct and therefore circumstantial
and
inferential factors should have been taken into account and afforded
more weight. It is in the circumstances contended
that there is
a reasonable likelihood that another court may come to a different
conclusion.
[3]
It is trite that the test to be applied in applications for leave to
appeal is whether another court might reasonably come to
a different
conclusion.
[4]
It is clear from the
Applicant’s submissions that its main argument is that the
First Respondent had failed to ask himself
which of the two suspects
were responsible for the sabotage that had taken place and that he
ought to have found, on a balance
of probabilities, that the Third
Respondent was guilty of the misconduct by virtue of the fact that he
had a motive to get rid
of the branch manager Mr Van der Walt and, in
perpetrating the misconduct, he would succeed with such motive.
[5]
In considering whether there
were any corroborative or surrounding circumstances to establish
guilt in addition to the Third Respondent
having failed a polygraph
test, this Court agreed with the findings of the First Respondent
that, but for the Third Respondent
failing the polygraph test, there
were no corroborating factors put before the First Respondent to
establish guilt. It was
categorically stated by the Chairman of
the disciplinary hearing that the basis for him having dismissed the
Third Respondent was
as a result of there being only two individuals
that could be implicated with the one having passed the polygraph
test whilst the
other having failed it. There were no other
corroborating factors present save for an argument of motive which is
dealt with
further below.
[6]
The Applicant contends that the Third Respondent had a motive for the
deletion of the files and missing tally rolls to ensure
the ultimate
removal of the branch manager. The Second Respondent, in
considering such an argument considered this to be
speculative.
His reasoning was considered and accepted by this Court when it found
that it was indeed speculative to suggest
that the Third Respondent
could have pre-empted that the deletion/removal of files and tally
rolls would have resulted in the branch
manager being dismissed.
Whilst the branch manager has subsequently been dismissed for failing
to ensure that the store room
in which the tally rolls were kept was
locked at all times, another employee, one Tsietso Ntlehekoa had been
dismissed for her
role in the missing tally rolls. Save for the
Third Respondent failing the polygraph, there was no evidence
implicating him
for removing the tally rolls.
[7]
Save for the Third Respondent having failed the polygraph test and
the speculative argument of motive, there was no corroborative
evidence put before the Second Respondent or this Court. In
fact, counsel for the Applicant had great difficulty addressing
this
court on the issue of corroborating factors with reference to the
record and persisted with the argument of motive in addition
to
seeking to place reliance on the accuracy of the polygraph tests.
[8]
The Applicant now seeks to introduce new facts by means of
statistical data to contend that they are supportive of a finding
that the Applicant is guilty of the misconduct complained of on a
balance of probabilities. None of the statistics and argument
was placed before the First Respondent when the matter was argued
before him and such data was not part of the record of the
proceedings.
There is accordingly no duty on this Court to
consider such statistical data prepared by a post-graduate student
after the hearing
of this matter.
[9]
I have great sympathy for the Applicant. I accept that the
deletion of the files was no accident considering that the
tally
rolls had also been removed. The Third Respondent and his
colleague Tsietsie had failed the polygraphs dismally.
The
argument of motive is however speculative. In the absence of
evidence other than the results of the polygraph, I am constrained
by
the law.
[10]
The real issue is whether another court might arrive at a different
conclusion. The law regarding the admissibility of
polygraph
tests is quite clear. Polygraphs may only be used as
corroborative evidence to determine guilt. The chairman
of the
disciplinary hearing, when pushed to give an answer as to why the
Third Respondent was dismissed, categorically stated that
it was as a
result of him having failed the polygraph test whilst his counterpart
had passed it. I see no reason why the
Labour Appeal Court
would come to a different conclusion on any application of the law to
the facts of the present case.
[11]
For the above reasons, the application for leave to appeal stands to
be dismissed.
[12]
In the premise, I make the following Order:
12.1
Leave
to appeal is refused.
12.2
There
is no order as to costs.
__________________________
Chavoos AJ
Acting Judge of
the Labour Court of South Africa