About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 50
|
|
Hillary Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1714/14) [2018] ZALCJHB 50 (26 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No. JR 1714/14
In
the matter between:
HILLARY
CONSTRUCTION (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
MR.
C.A.
MANNDE
Second Respondent
NDANDULENI
LEONARD SILIMA
Third Respondent
Heard:
20
July 2017
Delivered:
26 January 2018
Summary:
The applicant seeks to review and set
aside an award of the second
respondent in terms of Section 145(1) of the Labour Relations Act 66
of 1995 (the Act). The reasonable
decision-maker test is a stringent
one and the applicant’s grounds of review fell short of the
threshold. The application
was dismissed.
JUDGMENT
HUTCHINSON;
AJ
Introduction
[1]
The applicant is a construction company and is involved in the
construction, maintenance and rehabilitation of national and
provincial roads. The third respondent was employed by the applicant
on 16 November 2010 as a driver and at the date of his dismissal,
he
earned a salary of R5, 418.63 per month.
[2]
The third respondent was part of a team working at a site of the
applicant’s in Thohoyandou, Limpopo Province. On 28 November
2013, 27 litres of diesel went missing from a diesel container on the
site. There were three sets of keys to the container. The
third
respondent and a mechanic one Owner, each had their own set of keys.
The third set was kept in the cubbyhole of a truck which
a security
guard employed by a third party service provider had access to.
[3]
Pursuant to the theft, the keys that were kept in the cubbyhole of
the truck were handed over to the third respondent’s
supervisor, Mr Nametesu Chuene (Chuene). On 7 December 2013, 195
litres of diesel was stolen from the same diesel container. An
investigation revealed that a key had been used to unlock the
container. At the time of both thefts, the same security guard was
on
duty. By the time the second theft was discovered, the security guard
had deserted the site and absconded from his employment.
At the time
of the theft, Owner and Chuene rented and shared a room in
Thohoyandou and drove together daily to and from the site.
The third
respondent rented his own room approximately 22km from the site and
usually arranged for his own transport to and from
work.
[4]
All three employees underwent polygraph examinations. The third
respondent’s test results indicated deception whilst those
of
Owner and Chuene did not. The deponent to the applicant’s
founding affidavit, Mr Louis Olivier (Olivier) a Human Resources
Manager, states the following: “
As
a result of the above mentioned factors the Applicant charged the
Third Respondent with the misappropriation of diesel. A disciplinary
hearing was held on February 2014 where the Third Respondent was
found guilty of the charge and subsequently dismissed.”
[1]
CCMA
referral
[5]
The third respondent was dissatisfied with his dismissal and referred
an alleged unfair dismissal dispute to the first respondent.
The
matter could not be resolved at conciliation and the second
respondent was appointed under the auspices of the first respondent
to arbitrate the dispute.
[6]
It is apparent from the award of the second respondent that the
applicant called three witnesses to testify on its behalf and
the
third respondent testified in his own defence. The first witness who
testified on behalf of the applicant was Ms L. Snyman
(Snyman) the
person who conducted the polygraph tests. She was qualified to
conduct such tests and pursuant thereto, established
that the third
respondent showed signs of deception whereas, the other two employees
did not. The second witness to testify was
Mr Eddie Simpson (Simpson)
the applicant’s Operations Manager.
[7]
Simpson presented evidence in respect of both of the thefts. For the
first theft, no-one was charged. After the second theft,
the security
guard deserted the site and his whereabouts were unknown. It was the
third respondent’s duty to take care of
the company’s
assets including the diesel container. After making reference to the
result of the third respondent’s
polygraph test, Simpson
claimed that he could no longer trust the third respondent.
[8]
Chuene, the third respondent’s supervisor also testified. He
alerted Simpson to the theft. The third respondent rented
a room
close to where he stayed. On the day of the second theft, the third
respondent was staying in a rented room.
[9]
The third respondent denied any knowledge concerning the theft of the
diesel. He could not explain why the security guard had
disappeared
after the theft. When he arrived at work on 7 December 2013, he
discovered the theft and alerted his supervisor. He
disputed the
findings of the polygraph test.
[10]
The second respondent held as follows:
“
[19]
I would like to mention upfront that the Respondent did not adduce
direct evidence or circumstantial
evidence to substantiate its case.
It seems to me that the Respondent relied heavily on the polygraph
test to find the Applicant
guilty of the misconduct it alleged. The
Respondent did not bother to probe why the security guard disappeared
soon after the diesel
was stolen. There was a strong possibility that
the security guard committed theft of the diesel. Above all the
supervisor and
the mechanic had copies of the keys of the diesel
tank.
[20]
In the matter of
Truworths (Pty) Ltd v CCMA & Others (2009) 30
ILJ 677 (LC)
the court held that: “… a polygraph
test on its own cannot be used to determine the guilt of an employee.
However a
polygraph certainly may be taken into account where other
supporting evidence is available provided also that there is clear
evidence
on the qualification of the polygraphist and provided that
it is clear from the evidence that the test was done according to the
acceptable and recognizable standards. At the very least, the result
of the 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 the witness and in the
probabilities. The mere factor that the employee, however refuses to
undergo polygraph test is not in itself sufficient to substantiate
an
employee’s guilt.”
[11]
Accordingly, the second respondent found that the dismissal was not
for a fair reason and awarded the third respondent six
months’
compensation. The procedural fairness of the dismissal was not in
dispute.
Grounds
of review
[12]
The applicant enumerates a number of grounds of review however I will
only refer to the material ones. It is submitted that
the second
respondent misdirected himself in finding that the applicant had
failed to adduce any direct or circumstantial evidence
to implicate
the third respondent. The uncontested evidence revealed that only
three employees had a set of keys to the container.
The locks on the
diesel container were not tampered with, confirming that a key had
been used to remove the diesel.
[13]
It was contended that Owner and Chuene rented rooms at the same
premises and travelled together to and from site. The third
respondent stayed at another location closer to the site. The third
respondent was responsible for completing the fuel site log
book. He
would take meter readings on the vehicles. As it transpired, the
third respondent testified that he discovered the shortage
and
reported it.
[14]
It was submitted that at the time of the first incident, the third
respondent was the person responsible for placing a spare
key in the
cubbyhole compartment of the truck. Accordingly, he was the only
person who had knowledge of the location of the extra
spare key.
[15]
The results of the polygraph tests corroborated and supported the
circumstantial evidence adduced by the applicant. The third
respondent’s version was a bare denial. He was under a duty to
provide an explanation for the missing diesel. There was no
evidence
to suggest that the security guard had stolen the diesel.
Authorities
[16]
The controversy surrounding the evidential weight to be attributed to
polygraph tests was discussed and considered in the case
of
DHL
Supply Chain (Pty) Ltd v NBCRFI.
[2]
The court noted that no expert evidence had been given on the concept
of polygraph testing or on the technical integrity of that
process.
The mere say-so of the operator is unlikely to qualify as expert
evidence, and it would be a mistake to treat it as such.
Polygraph
tests are at best, merely means of establishing whether an
investigation should be conducted and cannot in itself, establish
guilt.
[17]
Statements that polygraph tests can be used only as corroborative
evidence beg the question what a failed test can produce
by way of
useful information. In the absence of expert evidence to explain why
an inference should be drawn from it, nothing remains
to contribute
to the probabilities. The Court observed that the weight to be given
polygraph tests remain an open question, but
any litigant who wishes
to rely on them must adduce expert evidence of its conceptual cogency
and the accuracy of its application.
[18]
Based on the above authority, little if any reliance can be placed on
a polygraph test to establish the guilt of an employee.
I agree with
the second respondent that the applicant placed far too much reliance
on the test. In my view it is likely that if
Owner and Chuene failed
the test, they would have been charged provided the applicant passed
the test. Since three persons were
in possession of keys, they all
had an opportunity to remove the diesel from the container. If the
third respondent was the thief,
he would in all probability have had
to conspire with the security guard. If Owner and Chuene were the
thieves, the same would
apply.
[19]
Another possibility that cannot be discounted is that the security
guard acted alone and managed to have a key made or ensured
that the
container was not locked when everyone left the site. The
possibilities are numerous.
[20]
To succeed on review, the applicant would have to show that the
second respondent was clearly wrong in his factual findings.
The
factors relied upon by the applicant barely create a probability one
way or another.
[21]
For the above reasons I am not satisfied that a proper case has been
made out for the relief sought.
[22]
Accordingly, I make the following order:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
_______________________
W
Hutchinson
Acting
Judge of the Labour Court
Appearance
For
the Applicant:
Attorney D. de Villiers
For
the Respondent:
No Appearance
[1]
Index
to pleadings 6 at para 4.16.
[2]
[2014]
9 BLLR 860
(LAC).