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[2019] ZALCJHB 117
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Bidvest Protea Coin (Pty) Ltd v Ngcobo and Others (JR2601/17) [2019] ZALCJHB 117 (22 May 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR2601/17
In
the matter between:
BIDVEST
PROTEA COIN (PTY) LTD Applicant
and
MBONGENI
ERNEST NGCOBO
First
Respondent
MAPUTLE
MOHLALA Second
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION Third
Respondent
Heard
:
11 January 2019
Delivered
:
22 May 2019
JUDGMENT
NTSHEBE,
AJ
Introduction
[1]
This is a
review application in terms of Section 145 of the Labour Relations
Act
[1]
(LRA). The applicant
seeks to have the arbitration award issued by the third respondent in
favour of the first respondent reviewed
and set aside.
Background
[2]
The applicant is involved in the security services industry,
rendering
security services to its clients. The first respondent was
employed by the applicant as an Assistant Security Officer.
[3]
In terms of the employment contract between the parties, the first
respondent
consented to undergo a polygraph or truth verification
test as and when requested to do so by the applicant. The applicant
conducts
these tests randomly and on any selected employees.
[4]
In May 2017, the first respondent was randomly selected to undergo
the
test. On the scheduled day of testing, the first respondent was
provided with the consent form to complete so that the testing could
be conducted. He refused to complete the consent form in spite of
being given an opportunity to consult his attorney. As a result,
he
was charged in a disciplinary hearing with breaching his employment
contract and subsequently dismissed. He duly referred an
unfair
dismissal dispute to the third respondent which was arbitrated by the
second respondent (arbitrator).
[5]
The arbitrator, in his award, found that the consent form provided
the
first respondent with a choice to refuse to undergo the polygraph
test. The arbitrator found that the first respondent, by virtue
of
his employment contract, was being coerced by the applicant to
undergo the polygraph test. Therefore, according to the arbitrator,
the first respondent had not refused to undergo the test in terms of
his employment contract as it compelled him to do so but only
refused
to sign the consent form allowing the test to be conducted.
[6]
The arbitrator held that the second respondent had not refused to
undergo
the polygraph test on 11 May 2017 and thus his dismissal was
substantively unfair and reinstated the first respondent.
[7]
The
applicant attacks the award on the basis that the decision reached by
the commissioner is one that a reasonable decision-maker
could not
reach.
[2]
In essence, the
applicant’s grounds for review are that the arbitrator ignored
the fact that the first respondent had consented
to undergo polygraph
tests in terms of his employment contract and that his refusal to
sign the consent form amounted to breach
of his contractual
obligations.
[8]
Furthermore, the arbitrator ignored evidence before him regarding the
purpose of the consent form. Evidence led was that polygraph testing
cannot be conducted until a person to be tested has signed
the
consent form, consenting to the testing being conducted.
[9]
I agree that the arbitrator ignored the applicant’s evidence
and/or
did not properly weigh it up. This is because the applicant’s
main witness had testified that the examiner could not conduct
the
testing without the consent form being signed as it is a
prerequisite. The purpose of the consent form was to allow the
examiner
to amongst others, put sensors on one’s body. This had
been explained to the first respondent.
[10]
The arbitrator also ignored the fact that the first respondent had
also in his employment
contract, consented to undergo polygraph
tests. I fail to understand on what basis the arbitrator found that
the first respondent
was coerced into being tested by the very same
employment contract he had voluntarily entered into.
[11]
In
Shoprite
Checkers v Commission for Conciliation, Mediation and Arbitration and
others
[3]
Myburgh AJ held that where a Commissioner misdirects him or herself
by ignoring material facts, the award will be reviewable if
the
distorting effect of this misdirection was to render the result of
the award unreasonable.
[12]
The arbitrator ignored material evidence of the applicant’s
witnesses. As a result of the above, the
second respondent reached a
decision a reasonable arbitrator could not have reached on the body
of evidence that was before him.
[13]
In the interest of fairness, I do not believe that it will be fair to
mulct the first respondent with a cost
order.
[14]
In the result, the following order is made:
Order
1. The arbitration
award issued by the second respondent is reviewed and set aside;
2. The arbitration
award is substituted with an order that the third respondent’s
dismissal was fair;
3.
There
is no order as to costs.
_________________________
T. Ntshebe
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Ms
S Lancaster of Lancaster
Kungoane Attorneys
For
the Respondent: Ms
M Mitti of MM Mitti Attornyes
[1]
Act
66
of 1995
as
amended.
[2]
Sidumo
v Rustenburg Platinum Mines Ltd
and
Others
[2007] 12 BLLR 1097
(CC)
.
[3]
[2015] 10 BLLR 1052
(LC)