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[2015] ZALCD 48
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Bidair Services (Pty) Ltd v Naidoo NO and Others (D1159/2012) [2015] ZALCD 48 (5 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not
Reportable
Case
no: D1159/2012
In
the matter between:-
BIDAIR
SERVICES (PTY) LTD
Applicant
and
COMMISSIONER
P M NAIDOO N.O.
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
SATAWU
obo M N HADEBE
Third Respondent
SATAWU
obo E S MTHEMBU
Fourth Respondent
Heard:
17 July 2014
Delivered:
20 August 2015
Summary:
Application for review of arbitration award.
JUDGMENT
HASLOP AJ
[1] The applicant has
applied to this Court for the review and setting aside of an
arbitration award by the first respondent who
found that the
dismissal by the applicant of the third and fourth respondent
employees, both represented by their trade union,
was procedurally
and substantively unfair and directed the applicant to reinstate them
‘on the same terms and conditions
no less favourable to them’
[sic]. He also awarded them arrear salary.
[2]
The employer provides services at King Shaka Airport in Durban and,
to that end, employed the respondent employees as cleaners.
[3]
They were dismissed following a disciplinary enquiry at which they
were found guilty of the following misconduct:
‘
Stealing
or attempting to steal property belonging to either an employee,
company or customer
- Being in unauthorized
possession of a customer, visitor, or employee, or passenger’s
property
- Dishonesty: any
decision or actions or conduct that results in a breakdown of the
trust relationship between Company and employee
- Bringing the Company’s
name into disrepute
- Breach of contract of
employment.’
[4] It turned out that
all of these complaints related to a single incident, and a single
incidence of alleged misconduct. During
a search of employees coming
off duty a colleague was found in possession of a pack of tissues
that was airline property. Nothing
untoward was found in the
possession of the respondent employees, but two more packs of tissues
were seen on the floor and, when
she was asked whose they were, the
colleague is alleged to have pointed them out. By that stage they had
already left the search
area.
[5] A South African
Airways official alerted the applicant to the matter by email and
indicated that South African Airways no longer
wished the employees
concerned to be ‘involved with SAA operations’. However
his email was misleading, or he had been
misled. In it he identified
the two respondent employees with having had ‘Kleenex tissues
in lunchbox’, which was not
the case.
[6] He also mentioned
that 19 of the applicant’s staff had been searched and only
three – the two respondent employees
and their aforementioned
colleague – ‘found in contravention’.
[7] The employees denied
that they had been responsible for removing the packs of tissues that
had apparently been found on the
floor by a policeman during the
search process.
[8]
In summary, the evidence against them, as presented by the applicant,
was that:
8.1
The zip of the bag of one of them was open as she approached the
search area, as if she had just removed something from it.
8.2
When asked whose tissues they were, their colleague made what the
applicant’s counsel referred to as a ‘spontaneous
exclamation’ that they belonged to the respondent employees,
who had just left the search area. She also pointed in their
direction.
8.3
This exchange was captured on video.
8.4
Both they and the colleague subsequently underwent polygraph tests in
accordance with the provisions of their employment contracts,
the
results of which showed that all three had been deceitful in
answering the questions posed during the tests.
[9]
There were several problems with this ‘evidence’, as
pointed out by the commissioner in his award.
[10]
Firstly, the colleague did not testify at the arbitration, so her
statement was hearsay. In addition, the video did not have
sound, so,
although it could apparently be seen that she was pointing in a
particular direction, what was said could not be ascertained.
In this
regard, however, there seems to be no reason to doubt the direct
evidence of the applicant’s witness who was present,
heard the
exchange and testified to it. However, all that proves is that the
exchange took place. The content is still hearsay
and the respondent
employees had no opportunity to test it.
[11]
Secondly, it seems to me that one cannot rule out, on a balance of
probabilities, the employee’s contention that she
unzipped her
bag, not to take out contraband, but in preparation for the search.
The fact that the bag was unzipped is no more
than relatively weak
circumstantial evidence, so weak in fact, that I do not consider it
necessary for me to deal in any detail
with the law relating to
circumstantial evidence.
[12]
Thirdly, the polygraph results, whatever their worth, were not
properly entered into evidence at the arbitration. The Labour
Appeal
Court has dealt in detail with polygraph evidence in
DHL
Supply Chain (Pty) Ltd v De Beer NO & Others
[1]
.
That court had the following to say at para [26] of its judgment:
‘
As
alluded to earlier, in this case, no expert evidence was adduced to
establish the cogency of the
concept
of
a polygraph nor to establish the
technical
integrity
of
the process. The say-so of the operator of the device is unlikely to
be of such a nature to qualify properly as expert evidence
of
the validity of the underlying concept or to be convincing if it is
tendered because of an obvious lack of independence and
a lack the
appropriate credentials. In
FAWU
obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt
River
(2010)
31
ILJ
1654 (LC)
and
NUM
& others v Coin Security Group (Pty) Ltd t/a Protea Coin Group
(2011)
32
ILJ
137 (LC)
expert
e
vidence
was admitted about the process. It seems to me to be a serious
omission to consider such evidence in the absence of expert
evidence.
The fact that courts have, previously, on one or another footing,
admitted such evidence, cannot serve as a licence to
admit it in all
subsequent proceedings. Indeed, a reading of the cases where
benign remarks have been made about this species
of evidence does not
warrant the supposition that it is an “approved type of
evidence”.’
[13]
The court then summarised the issue of polygraph evidence as follows
in para [31]:
‘
In
summary, the respectability of polygraph evidence, at best, remains
an open question, and any litigant seeking to
invoke it for any
legitimate purpose, must, needs be, adduce expert evidence of its
conceptual cogency and the accuracy of its
application in every given
case.’
[14]
This the applicant singularly failed to do. The effect of that
failure is that there was no polygraph evidence before the arbitrator
at all.
[15]
Since the arbitration constitutes a new hearing, the fact that the
results were not entered into evidence at the disciplinary
hearing is
of less importance, except procedurally. It seems as if the
chairperson was handed the results outside of the hearing
itself, and
not in the presence of the employees. Although it was not the
specific procedural defect complained of by the employees,
that seems
to me to be procedurally unfair.
[16]
Consequently, the only evidence before the arbitrator connecting the
respondent employees to the apparent attempted theft of
the tissues
was the weak circumstantial evidence of the unzipped bag and the
hearsay exclamation from the colleague. This, the
arbitrator found,
was not sufficient to discharge the onus on the employer to prove the
misconduct on a balance of probabilities.
That finding is not one
that no reasonable decision-maker could have reached, which is the
well-established test for setting aside
an award on review.
[17]
One of the applicant’s grounds of review was that the
arbitrator did not advise the applicant’s representative
that
it would be wise to call expert polygraph evidence as well as the
colleague who made the statement implicating the respondent
employees.
[18]
In
Bafokeng
Rasimone Platinum Mine v Commission for Conciliation, Mediation &
Arbitration &
Others
[2]
this
court commented at para [17] that:
‘
In
conclusion, it needs to be stated that whereas there is a duty on
arbitrators to provide guidance and assistance to lay litigants,
the
question of whether such duty arose and whether failure to carry it
out is an irregularity rendering an award reviewable
is a matter
to be decided with reference to the particular circumstances of each
case. Care should be taken not to straddle the
fine line between
legitimate intervention by an arbitrator and assistance amounting to
advancing one party's case at the expense
of the other.
Otherwise we would be opening the floodgates allowing every lay
representative who has bungled his/her case
to seek its reopening by
shifting the blame to the arbitrator.’…
[19]
In addition, LaGrange J dealt with this issue at para [18] of his
judgment in
Anglo
Operations Ltd (Kriel Colliery) v Commission for Conciliation,
Mediation & Arbitration & Others
[3]
.
Applying his reasoning, with which I associate myself, to this case,
I come to the following conclusions:
19.1
The employer's representative never complained that he was not
familiar with the arbitration process. Nothing in the record
suggests
that to have been the case. The person identified by the transcriber
as ‘Mr Nxubu’ turns out to have been
Mr Ncube, the
employer’s Industrial Relations Manager. He states in his
founding affidavit that he is ‘not a trained
legal
representative’. He does not suggest that he is unfamiliar with
the requirements of proving his case.
19.2
The arbitrator was entitled to believe that a company in the position
of the applicant would have the resources to ensure that
it sent
adequately trained representatives to arbitration proceedings.
19.3
I believe that the issue of the admissibility of polygraph evidence
is sufficiently widely known, or at least, sufficiently
widely
discussed for the applicant’s representative to have at least
understood that, if he wished to rely on polygraph evidence,
he would
have to call a polygraph expert. It seems that polygraph testing was
fairly routine in this company. There was certainly
evidence that its
employees were contractually obliged to submit to polygraph testing
in certain circumstances. He did not even
call the polygraph tester.
Indeed, it seemed from the evidence that the whole issue of the
failed polygraph test was something
of an afterthought, even in
relation to the disciplinary hearing.
19.4
It was clear at the very beginning of the case that the colleague who
had implicated her two fellow employees would not be
testifying for
them. She had been an applicant herself but had failed to attend the
proceedings. At that point a conscientious
representative would have
requested an adjournment and subpoenaed the colleague as a witness.
In his founding affidavit, the applicant’s
representative
claims that the applicant could not have subpoenaed the colleague
because it was anticipated that she would be one
of the applicants.
But it must have been obvious from the outset that that position had
changed.
19.5
Of course, having apparently decided not to pursue her own case, the
colleague might not have testified in the applicant’s
favour,
in which case it would have served no purpose to call her. But the
applicant would have been able to establish that upfront.
I do not
believe that it was the arbitrator’s duty to alert the
applicant to this. Indeed, the applicant’s representative
asked
in cross-examination whether the employees would be calling the
colleague to testify and was met with the answer that, although
they
could
call her, ‘I don’t know whether we are the ones who’s
supposed to call her or what’.
19.6
There was no reason for the arbitrator to believe that the
applicant’s representative did not appreciate these issues.
Had
he invited the applicant to bolster its evidence in this way he might
well have been perceived to be partial.
[20]
LaGrange J came to the following conclusion in para [19] of his
judgment:
‘
In
the circumstances, I do not think that the arbitrator ought to have
assisted the applicant's representative, by pointing out
to him that
he might wish to lead additional evidence … before
closing the applicant's case. Consequently, the arbitrator
did not
commit a reviewable irregularity in the conduct of proceedings by
failing to advise the applicant's representative of the
need to lead
(such additional) evidence.’
[21]
I come to the same conclusion in this case.
[22]
The effect of that conclusion is that the review application must
fail on the question of substantive fairness.
[23]
As far as procedural fairness goes, the arbitrator came to the
conclusion that requiring unsophisticated employees to present
written argument on mitigation, and then proceeding to deliver his
finding when none was forthcoming, constituted procedural unfairness.
Although the employees were represented at the disciplinary hearing
by a representative of their choice, I do not believe that
the
arbitrator’s finding in that regard is one that no reasonable
decision-maker could have made.
[24]
It was argued that, even if the dismissal was unfair, reinstatement
was inappropriate given the response of the employer’s
client,
South African Airways, which was not prepared to allow the employees
to be ‘involved with SAA operations’ anymore.
That
response was contained in the same email that suggested that the
tissues had been found in the respondent employees’
lunchboxes.
That was based on factually incorrect information. Section 193 of the
Labour Relations Act
[4]
makes
reinstatement the primary remedy for a substantively unfair
dismissal. Once again, the arbitrator’s conclusion that
that is
what should happen in this case is entirely reasonable.
[25]
The applicant also brought an application for condonation in relation
to its possible late filing of the record, depending
upon whether the
Labour Court Practice Manual applied to this record or not. The issue
is of less importance given the conclusions
to which I have come on
the merits. Suffice it to say, therefore, that the delay was not
unreasonably long in relation to the reasons
given for it, those
reasons were acceptable, and it cannot be said that the applicant had
no prospect of success on the merits.
[26]
Applying the well-known principles set out in
Melane
v Santam Insurance Co Ltd
[5]
,
I therefore grant condonation.
[27]
As far as the issue of costs is concerned, the reinstatement of the
employees will mean that there will be an ongoing relationship
between the parties. That is often considered to be a factor that
militates against a costs order. I agree. I do not believe,
therefore, that a costs order would be appropriate.
[28]
In the circumstances, I make the following order:
1.
The applicant’s condonation application is granted.
2.
The application for review is dismissed.
3.
There is no order as to costs.
_______________
Haslop, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
F
or
the applicant
:
W Hutchinson
Instructed
by:
Moodie & Robertson, Braamfontein
For
the third and fourth respondents:
S Mhlanga of Mhlanga Inc, Durban
[1]
(2014) 35
ILJ
2379 (LAC)
[2]
(2006)
27
ILJ
1499 (LC)
[3]
2014)
35
ILJ
1520 (LC)
[4]
Act 66 of 1995.
[5]
1962 (4) SA 531
(A)