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[2018] ZALCJHB 425
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Kgwedi v Bidvest Protea Coin (Pty) Ltd (JS1052/16) [2018] ZALCJHB 425; [2019] 6 BLLR 562 (LC) (18 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 1052/16
In
the matter between
MISHACK
KGWEDI Applicant
and
BIDVEST
PROTEA COIN (PTY)
LTD Respondent
Heard:
06 – 07 December 2018
Delivered:
18 December 2018
JUDGMENT
MAHOSI.J
Introduction
[1]
The applicant
approached this Court by way
of a statement of claim to challenge the substantive and procedural
fairness of his dismissal based
on the respondent’s operational
requirements.
The relief sought is that he
be retrospectively reinstated.
[2] This matter was heard
from 6 November 2018 until 7 November 2018. At the end of the trial,
the parties agreed to submit written
heads of argument not later than
13 November 2018. The heads of argument were filed as agreed.
Background
[3] Prior to outlining
the applicant’s case in detail and considering the issues that
gave rise to the claim, it is necessary
to outline the facts that
form the relevant background to the dispute between the parties.
[4] The respondent is a
private company providing guarding security services to various
clients across various industries. The applicant
commenced employment
with the respondent on 12 September 2012 as a security guard. He was
placed at the premises of the respondent’s
client, Impala
Platinum Refinery, to perform guarding services.
[5] On 27 October 2016,
the respondent subjected the applicant to a polygraph test. The
following day, on 28 October 2016, the applicant
had a meeting with
the company investigator, Marieta Buurman (Ms Buurman), in the
presence of Mr Shaun Ackerman (Mr Ackerman).
The purpose of the
meeting was to inform the applicant about the outcome of the
polygraph test.
[6]
After the meeting with Ms Buurman, the applicant was referred to the
Human Resource office for a meeting with Ms. Dorothea Nel
(Ms Nel).
Subsequently, on 31 October 2016, the applicant signed a retrenchment
agreement. His last working day as per the agreement
was 31 October
2016. The applicant’s case is that the retrenchment agreement
is invalid as he signed it under duress.
Evidence
of parties
[7] The applicant led
evidence in support of his case and two witnesses led evidence for
the respondent.
The respondent’s
witnesses
Mr Shaun Ackerman
[8] Mr Ackerman testified
under oath that he was employed by the respondent as a senior shift
supervisor and had been employed for
11 years. He further testified
that in terms of the agreement between Impala Platinum Refinery (the
client) and the respondent,
the respondent’s employees are
required to undergo a pre-employment polygraph test. Thereafter, the
client may randomly schedule
polygraph tests for the respondent’s
employees who are placed at its site. The polygraph tests are
conducted by a third party
who is appointed by the client. In
addition, the client bears costs associated with such tests.
[9]
Mr Ackerman further testified that he was not always involved with
the employee’s polygraph test. However, he became involved
in
the applicant’s case as a result of the invitation by Ms
Buurman for him to attend a meeting as a witness. During the
meeting,
Ms Buurman informed the applicant that she had received the polygraph
report, which outlines his polygraph results. According
to the
polygraph report, the applicant’s results were found to be
negative in that deception had been detected in the answers
he had
given by during the polygraph test.
[10]
In addition, Ms Buurman explained to the applicant that the test was
standard protocol and that all the employees were asked
the same
questions during the tests. Further that it was the client’s
requirements that all the respondent’s employees
placed at its
site pass the polygraph tests. The applicant was further informed
that failing polygraph test was not a condemnation
and that he would
still remain the respondent’s employee.
[11]
Furthermore, Mr Ackerman testified that Ms Buurman inquired with the
applicant whether or not he understood the questions posed
to him
during the test, whether there was anything that bothered him during
the polygraph test and whether he was comfortable with
how the
polygraph test was conducted. The applicant answered in the
affirmative and even confirmed that he had signed a consent
form
prior to the test being conducted.
[12]
Under cross-examination, Mr Ackerman confirmed that the applicant did
not dispute anything during the meeting with Ms Buurman.
Mr Ackerman
disputed that the applicant was informed that his services where
terminated as a result of failing the test. Instead,
he testified
that the applicant was informed that the client had requested his
removal from the site
and was referred to
the Human Resource (HR) for a further meeting.
Ms Dorothea Nel
[13]
Ms Dorothea Nel (Ms Nel) testified under oath that she was employed
by the respondent as a Human Resource administrator and
that she was
based at the client’s premises. On the practice of subjecting
the respondent’s employees to polygraph
tests, she testified
that numerous security guards placed at the client’s site
undergo polygraph testing if and when required
by the client. In
cases where an employee fails a polygraph test, the client would
normally request the removal of such an employee.
The respondent
would thereafter commence with a process of investigating alternative
sites for possible placement or transfer.
[14]
On 28 October 2016, she had a meeting with the applicant during which
she explained that the respondent will attempt to secure
an
alternative site for him and should that fail, the respondent would
proceed with a retrenchment process. It was during this
meeting
wherein the applicant indicated that he did not want to go through
retrenchment meetings and he requested to be retrenched.
In response,
she told the applicant to go and think about the issue over the
weekend before making any final decision. A further
meeting was
arranged for
31 October 2016.
[15]
During the meeting on 31 October 2016, Ms Nel informed the applicant
that there were sites available and positions wherein
he could be
placed. In response to same, the applicant confirmed that he did not
wish to engage in the process or to continue being
employed by the
respondent but would rather enter into a voluntary retrenchment
agreement. Ms Nel
took the applicant to Mr
Taljaard’s office where she explained to Mr Taljaard that the
applicant chose not to go through the
retrenchment meetings. Mr
Taljaard said that in that case, the only process to be followed
would be to enter into a written agreement
of retrenchment with the
applicant.
[16]
Ms Nel and the applicant went back to Ms Nel’s office where she
printed out the agreement. Ms Nel presented the agreement
to the
applicant, explained it thoroughly and further asked the applicant to
read it.
Ms Nel invited questions from the
applicant and asked if he had any reservations,
concerns and/or queries in respect of the agreement, to which the
applicant confirmed
that he had none. The applicant read the
agreement and signed it.
[17]
Ms Nel explained the terms of the agreement to the applicant and
requested that he initial each section as an indication that
he
understood the contents thereof. On page 2 of the agreement, the
applicant signed to confirm the last working day, the severance
package and the reason for termination. After signing the agreement,
she informed the applicant to return the uniform that had
been
provided during his tenure with the respondent.
[18]
Under cross-examination, Ms Nel testified that there was no written
proof that he requested to be retrenched. She disputed
that the
applicant was coerced into signing the agreement and that she told
him that he was dismissed because he had failed the
polygraph test.
The Applicant’s
case
Mr Mishack Kgwedi
[19]
Mr Kgwedi (the applicant) testified that he was employed by the
respondent on 12 September 2012 as Security Officer and was
later
promoted to the position of Supervisor. He
was
placed at the client’s premises to perform guarding duties.
[20]
On 27 October 2016, his Manager, Mr. Cassie van Eeden (Mr van Eeden),
advised him to attend to a polygraph test prior to the
end of his
shift. He attended to polygraph testing after 15:00 p.m. as he had
been quite busy with his duties on that date. The
polygraph testing
took a period of 45 minutes after which the examiner informed him
that he had passed the test.
[21]
On 28 October 2016, he was advised to meet with the company
investigator, Ms Buurman. At the meeting, Ms Buurman informed him
that he had failed the polygraph test in that
he
failed a question relating to taking a bribe on site,
which
meant that he was dishonest.
Out of shock
he requested to be provided with the results of the polygraph test,
but Ms Buurman refused to provide the results to
him.
[22]
Ms Buurman further informed him that he should return his employment
uniform, as his employment with the respondent had been
terminated.
Further that there was no alternative site at which he could be
placed. He then advised Ms Buurman that the examiner
had informed him
after the polygraph test had been completed that he had passed the
test. He further informed Ms Buurman that should
he have failed the
test, the respondent ought to have charged him and subjected him to a
formal inquiry. Ms
Buurman said she knew
nothing about the disciplinary process and referred him to the Human
Resource office. He was dispossessed
of the access card and escorted
out of the site.
[23] The applicant
disputed Mr. Ackerman’s version of what happened at the
meeting. He stated that he (Mr Ackerman) probably
forgot what
transpired as he was just there without taking part in the meeting.
[24] On 28 October 2016,
he met with Ms Nel who told him that he was dismissed for failing the
polygraph test. He pleaded with her
for an alternative site but was
told that there was no alternative site. He requested to see Mr
Taljaard but was refused access
to him. He was told to return on 31
October 2016 to hand in the company’s property.
[25] On Monday, 31
October 2016, he went back to Ms Nel’s office where he found
all the documents prepared for his signature.
Although he confirmed
that the signature on the retrenchment agreement was his, he
submitted that Ms Nel did not go through the
document with him and
that he was told to sign the agreement in order for the respondent to
process what was due to him.
[26] The applicant denied
that all signatories to the settlement agreement signed the agreement
in the presence of each other, that
the operational process was
explained to him and that he chose to be retrenched. To show that he
was aggrieved, he wrote a letter
to the CEO of the respondent to
complain about his dismissal. The CEO telephoned the applicant and
promised to revert to him after
dealing with the management. The
applicant gave the CEO two weeks to revert to him and when he was not
calling him back he referred
a dispute to the CCMA.
[27]
When asked if he voluntarily signed the agreement he stated that
although he was against it, he signed after it was explained
to him
that the respondent was using a new section 189 of Labour Relations
Act
[1]
(LRA) process. The other
reason he signed the agreement was because he was told that if he did
not sign the agreement, his salary
was not going to be processed.
[28] The applicant
testified that he was currently unemployed and further that his
applications for employment with other companies
were not successful
as the respondent gave bad reference for him. He stated that he was
in debt and could not pay rent or take
care of his family, which
resulted in his wife leaving him.
[29] The applicant argued
that dismissal was unfair because he was initially told that he
passed the polygraph test, there was no
disciplinary hearing
conducted, there was no alternative position offered to him and there
was no reason to retrench him as the
respondent employed employees
from Kwa-Zulu Natal and Bloemfontein.
Legal principles and
analysis of evidence
[30] According to the
parties’ pre-trial minute, this Court is required to determine
the following:
‘
9.
Whether or not the applicant was unfairly dismissed;
10. If so, whether or not
the applicant should be reinstated, alternatively whether or not the
applicant should be compensated for
his unfair dismissal;
11. Whether there was a
fair reason for the dismissal of the applicant on the basis of the
operational requirements of the respondent;
12. Whether a fair
process was followed by the respondent in dismissing the applicant.’
[31] The issue is whether
the applicant was dismissed for operational requirements and if so,
whether his dismissal was procedurally
and substantively fair.
Section 192 of the LRA requires an employee, in any proceedings
concerning any dismissal, to prove the
existence of the dismissal. If
the existence of the dismissal is established, the employer must
prove that the dismissal was fair.
Similarly,
section
188(1) of the LRA obliges the employer to prove that the reason for
the dismissal was fair
, where an employer
dismisses employees on account of its operational requirements.
The term “operational requirements” is defined in section
213 of the LRA to mean “requirements based on the economic,
technological, structural or similar needs of an employer”.
Item 1 of the Code of Good Practice on Dismissal Based on Operational
Requirements provides that:
‘
The
Labour Relations Act (Act 66 of 1995) (“the Act”) defines
a dismissal based on the
operational
requirements
of an employer as one
that is based on the economic, technological, structural or similar
needs of the employer. It is difficult
to define all the
circumstances that might legitimately form the basis of a
dismissal
for this reason. As a general rule, economic reasons are those that
relate to the financial management of the enterprise. Technological
reasons refer to the introduction of new technology which affects
work relationships either by making existing jobs redundant or
by
requiring
employees
to adapt to the new technology or a consequential restructuring of
the workplace. Structural reasons relate to the redundancy of
posts
consequent to a restructuring of the employer’s enterprise.’
[32]
The Labour Appeal Court restated the test to evaluate the substantive
fairness of dismissal related to operational requirements
in
Haveman
v Secequip (Pty) Ltd
[2]
and it stated as follows:
‘
A fair reason is
one that is
bona fide
and rationally justified, informed by a
proper and valid commercial or business rationale. The enquiry is not
whether the reason
put up is one which would have been chosen by the
court but whether the reason advanced considered objectively is
fair.’
[33] The respondent’s
evidence is that the applicant was removed from the client’s
premises subsequent to him failing
the polygraph test. In defending
its decision to subject the applicant to polygraph test, it relied on
the contract of employment
entered into between the parties which
states as follows:
‘
Special
Terms of Employment:
7.1 The Company may in
its discretion or a request from a client and upon reasonable notice
to you, transfer you to another location
when in the interest of the
company.
7.6 It is agreed by the
Employee that this in contract and continuation thereof, depends
entirely on the operational requirements
of Impala Platinum
Refineries, Springs by its very nature and is entitled to take all
reasonable steps to ensure the protection
of its assets.
7.7 In so doing it
requires from its security service provider to conduct polygraph and
other similar tests with the Employees.
As such, the Company will
require you to undergo polygraph and other similar tests conducted by
a polygraphist. The Employees appointment
will be subjected to the
polygraph test results.
7.8 By
the very nature of its business, the organisation is at high risk of
stock losses, Impala Platinum Refineries and the Bidvest
Magnum Group
have instituted various measures to ensure that the specific
operational needs of the organisation are met. These
measures extend
to this contract. The Employee therefore accepts that if there is an
unreasonably high risk identified by Impala
Platinum Refineries
and/or the Bidvest Magnum Group in relation to this employment
contract, then Bidvest Magnum Group is entitled
to terminate this
contract in terms of the LRA. 9
…
Searching,
Alcohol testing and Polygraph:
11.3 You may be requested
by the Company or the Client, to submit yourself to a polygraph or
other similar tests. In the event that
you are requested to be
tested, this will be done in privacy and with due regard to your
constitutional right to human dignity.
You may also reasonably refuse
a request to be tested.
11.4 Irrespective of
section 7.8 of this contract, the Company retains the right and the
employee agrees that Bidvest Magnum Group
retains the right to
commence with Operational Requirements procedures and or transfer the
Employee should he/she fail any of the
above-mentioned tests and
actions indicated above.’
[34]
The existence of the contract of employment is not in dispute. The
applicant confirmed his signature thereon and that he understood
the
contents thereof. The respondent’s submission was that the
commercial agreement with its client to subject its employees
to
polygraph test created the operational requirement once the employees
had failed the said test. To support its submission, the
respondent
relied on
SA
Transport and Allied Workers Union and Others v Khulani Fidelity
Security Services (Pty) Ltd
[3]
where
the Court found as follows:
‘
There
is no evidential basis to conclude that there had been non-compliance
with the provisions of section 189 of the LRA.
To sum up
therefore, there was an agreement. That agreement was designed for
operational reasons, namely to ensure that only people
of proven
integrity could be maintained in these position. That was the purpose
of the agreement with respondent’s client.
It was the reason
why consultations took place with the first appellant. The position
was also known to all the workers employed
therein; that is failure
of the test gave rise to termination from that post for the reasons I
have mentioned, being operational
reasons.
Thereafter
there was an obligation to engage in a process of consultation with
relevant employees and to offer, if at all possible,
alternative
positions…’
[35] In this case, the
process of consultation was not engaged on. The respondent’s
evidence is that the applicant refused
to take part in the process of
consultation and opted to enter into a retrenchment settlement
agreement. The applicant did not
dispute that he signed the
settlement agreement. However, his case is that he signed the
settlement agreement under duress as he
was advised that failure to
sign it would result in him not receiving any of his monies.
[36] Of significance is
that, in the settlement agreement, the parties agreed that:
‘
After
consultations, the parties hereby agree to the following as the
full
and final settlement agreement
terms
between the above-mentioned parties…
[37]
It is an established principle that
contracts are binding on parties and are therefore enforceable
unless it can be shown
that the parties were not on an equal footing
when entering into the contract, or that the contract was invalid
ab
initio
, or that it is contrary to
public policy or it is an illegal contract.
In
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd
and Another
it was held that:
‘
[12]
Contractual principles apply to any agreement entered into between an
employer and employee, including an agreement of compromise
in terms
of which parties agree to settle any dispute, or claims, that may
exist between them.
…
[15]
A contract may be vitiated by duress where “
intimidation
or improper pressure renders the consent of the party subjected to
duress no true consent
.
Compulsion
may be exercised by way of physical force, or indirectly, by way of a
threat of harm. In order to obtain an order setting
aside a contract
on the grounds of duress, actual violence or reasonable fear must be
shown. The fear must be caused by the threat
of some “considerable
evil” to the person concerned, or to his, or her, family. The
threat or intimidation must be
unlawful, or
contra
bonos mores
and
the moral pressure used must have caused damage
.
The burden of proving
the existence of duress rests on the party raising it.
’
[38]
When evaluating the bargaining power between the parties, the Court
will take into account the position and status of the employee
to the
contract. In the current matter,
the
threat not to pay the applicant for failure to sign the settlement
agreement cannot amount to a reasonable fear on the part
of the
applicant.
It is apparent from the
facts of this matter that the applicant did not hold a low-level
position that could be seen to have been
exploited by the respondent
in entering into the settlement agreement. The evidence is not only
that th
e applicant had a Grade A Security
Certificate, Basic Computer, Bookkeeping and a Certificate in
Management, but he was trained
on Labour Relations.
[39]
In addition, the applicant did not only sign the last page of the
agreement but also put his signature on the clauses relating
to the
reason for termination of employment, the last day of employment and
payment of severance pay.
In fact,
the applicant never raised any concerns with
regards to the settlement agreement. In the letter he allegedly sent
to the respondent’s
CEO, the applicant did not raise the
complaint about being coerced to sign a settlement agreement and
could not, under cross examination,
give a reason why he chose not
to. Therefore, the only reasonable conclusion that could be drawn is
that he read and understood
the contents of the settlement agreement
prior to signing it.
[40]
In
Gbenga-Oluwatoye
v Reckitt Benckiser South Africa (Pty) Limited and Another
[4]
,
the Constitutional Court held as follows:
‘
The public, and
indeed our courts, have a powerful interest in enforcing agreements
of this sort. The applicant must be held bound.
When parties settle
an existing dispute in full and final settlement, none should be
lightly released from an undertaking seriously
and willingly
embraced. This is particularly so if the agreement was, as here, for
the benefit of the party seeking to escape the
consequences of his
own conduct. Even if the clause excluding access to courts were on
its own invalid and unenforceable, the applicant
must still fail.
This is because he concluded an enforceable agreement that finally
settled his dispute with his employer.’
[41]
On the conspectus of all the evidence
,
the applicant failed to
prove
the existence of duress or coercion.
With
the signature of the agreement not being in dispute, the settlement
agreement is binding on the parties to it.
Having
found that the applicant failed to prove existence of duress, the
fairness of the applicant’s dismissal does not arise.
[42]
For these reasons, it follows that the applicant’s claim falls
to be dismissed.
Whilst I am of the
view that the applicant was ill advised in bringing this application,
I am not inclined to order costs against
him taking into account the
principles of equity and fairness.
[43] In the premises, I
make the following order.
Order
1. The applicant’s
claim is dismissed.
2. There is no order as
to costs.
__________________
D. Mahosi
Judge of the Labour Court
of South Africa
Appearances:
For the Applicants: Ms.
Kabelo Letsholo of Ismail & Dahya Attorneys
For the Third Respondent:
Ms. Lancaster of Lancaster Kungone Attorneys
[1]
Act
66 of 1995 as amended.
[2]
JA
91/2014 at para 28, delivered 22 November 2016; See also
Johnson
& Johnson (Pty) Ltd v CWIU
[1998]
12 BLLR 1209
(LAC
)
.
Kotze v
Rebel Discount Liquor Group (Pty) Ltd
(2000)
21 ILJ 129 (LAC) at para 36;
BMD
Knitting Mills (Pty) Ltd v SACTWU
[2001]
7 BLLR 705
(LAC) at para 19 and
CWIU
and Others v Algorax (Pty) Ltd
[2003]
11 BLLR 1081 (LAC).
[3]
(2011)
32 ILJ 130 (LAC).
[4]
2016 (12) BCLR 1515
(CC) at para 24