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[2020] ZALCJHB 78
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Crossroads Distribution (Pty) Ltd t/a Skynet Worldwide Express v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1335/14) [2020] ZALCJHB 78 (12 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1335/14
In
the matter between:
CROSSROADS
DISTRIBUTION (PTY) LTD T/A
SKYNET
WORLDWIDE EXPRESS
Applicant
and
NATIONAL
BARGAlNlNG COUNCIL,. FOR THE ROAD
FREIGHT
AND LOGISTICS INDUSTRY
First Respondent
MATLATSI
PHALA
Second
Respondent
SATAWU
O.BO CHARLES MAZIBUKO &
ABRAHAM
MAKUBELA
Third
Respondent
Heard:
16 January 2020
Delivered:
12 May 2020
"By
Email"
Summary:
Review application in terms of
Sections 145
and
158
(1)(g) of the
Labour Relations Act 66 of 1995
as amended to review and set aside
the arbitration award issued by the Second Respondent acting under
auspices of the First Respondent
handed down on the 18th June 2014
under Case Number GPRFBC28155. Application opposed - no opposing
affidavit filed by the Third
Respondent
who also failed to appear. Application for review granted - no order
as to costs.
JUDGMENT
[1]
The Applicant is Crossroads Distribution
(Pty) Ltd trading as Skynet Worldwide Express, a courier company that
primarily deals With
the import and export of low and high value
goods.
[2]
The individual Third Respondents'
('Mazibuko and Makubela') are ex employees of the Applicant who
both worked· at the
Applicant's bond store. Mazibuko was
employed from November 2001 as an imports clerk and was dismissed on
21 September 2013. Makubela
began his employment with the Applicant
on 1 March 2005 as a general worker and was dismissed on 18 September
2013.
[3]
On commencement· of
employment with the Applicant, Mazibuko
and Makubele;.
like all employees were required to enter into
contracts of
employment
with the Applicant. All of these contracts contained the following
clause, ,or a clause similar thereto:
"Polygraph
Testing
You
hereby agree to submit to polygraph testing. The decision as to
whether or not to conduct these tests rests solely with the
employer,
provided that testing will be conducted by competent, qualified
persons and only tests recognised as reliable will be
used.
Refusal
to submit to polygraph tests in the circumstances set out above will
be regarded as a serious breach of this contract, which
may lead to
disciplinary action and possible termination of the contract."
or
"You
hereby acknowledge that you are aware that polygraph tests have been
made compulsory in all insurance claims involving
hijacks, theft,
losses and fraud. You hereby agree to submit to any polygraph test
should such test be required for insurance
claims or
other purposes deemed to . be reasonable you accept
that refusal to submit to a polygraph
test could render you liable
for appropriate disciplinary action, which may include dismissal."
[4]
During the course of Mazibuko and
Makubela's employment a situation arose whereby high value- goods
were changed to low value
goods which resulted in no tax being
payable by the particular client to the detriment of the South
African Revenue Services.
[5]
A subsequent investigation into the
matter ensued whereby all of the employees at the bond store were
requested to undergo a polygraph
test as per their employment
contracts. All of the bond stores employees consented to undergoing
the polygraph test except for
four employees, who refused to undergo
the test.
[6]
Meetings were then held with the bond
store employees in order to explain the purpose of undergoing the
polygraph test in order
to aid the investigation. Four h:1eetings
were held as well as meetings with the individual employees who
refused to undergo the
polygraph tests.
[7]
The Applicant held individual meetings
with both Mazibuko and Makhubela on 27 August 2013 in an attempt to
convince the employees
to undergo the polygraph tests, as per their
employment contracts, and alluded to the consequences of failure to
do so.
[8]
Brent Walker, the Applicant's National
Manager, explained to both Mazibuko and Makubela that the purpose of
using the polygraph
test was to narrow the scope of the investigation
and reiterated that the results of such tests would not be considered
by itself
in determining whether or not the employees who failed the
polygraph test were to be dismissed. Furthermore, it was explained
that
Mazibuko and Makubela were contractually obligated to take such
a polygraph test when requested to do so. Despite these attempts
Mazibuko and Makubela refused to take the polygraph tests resulting
in the following charges being levelled against them:
"The
Charges
You
explicitly or implicitly contributed to or. supported or associated
with the dishonesty whereby import documentation and manifests
as
indicated below reflected false values and/or items pertaining to
imports during the period 26/01/2013 to 28/05/2013 in that
you failed
to assist and/or co-operate with the company in its investigation by
refusing to participate in taking a polygraph.
Alternatively
Failing.to
assist or co-operate with the company in its investigation into
unauthorised amendments to import documentation during
the period
26/01(2,013 to 28/05/2013 in that you refused to take a polygraph
test."
[9]
The Applicant then held disciplinary enquiries for all four
Employees, including Matibuko and Makubela, who refused to
undergo
the requested polygraph 'tests. All of the
employees were found guilty and dismissed on the alternative charge
due
to their failure to co-operate with the company in conducting its
investigation. Mazibuko and Makubela referred an unfair
dismissal dispute to the First Respondent in term of
section 191(1) of the Labour Relations Act
[1]
(LRA) whilst the other two did not contest their dismissal.
[10]
The referrals of Mazibuko and Makubela
were referred to the First Respondent separately, however, the
parties later agreed that
the matters would be consolidated and heard
as one matter.
Arbitration
Proceedings
[11]
The Arbitration was held under the
auspices of the First Respondent on 8 May 2014 and 04 June 2014 when
it was finalised. The award
was handed down on 8 June 2014 and was
received by the Applicant on 18 June 2014.
[12]
During the proceedings Mazibuko
testified that as a shop steward he refused to undergo the polygraph
test because he became aware
that the company was using polygraph
tests to dismiss employees.
[13]
Mazibuko further confirmed that he was
in attendance at the meeting held on 27 August 2013 where he was
informed that he was under
a contractual obligation to undergo the
polygraph test. Mazibuko demanded to be shown the contract which
stated this and an unsigned
copy of the contract was given. Mazibuko
stated that he, as a r sult of it being unsigned, was not bound to
such an agreement.
It was common cause that the legal duty to undergo
a polygraph
test
was a standard clause in all of the Applicant's contracts of
employment.
[14]
Mazibuko also stated that he could
overhear any conversation which took place in the office t did not
pick up on any related to
criminal activities. Mazibuko further
stated that the ambit of his occupation primarily concerned low value
goods ani:f he had
no business in accessing information concerning
high value goods on the systems. Mazibuko reaffirmed that despite the
statement
of Mr Walker that he will still be able to conduct himself
as an employee of the Applicant and the trust has not broken down due
to this incident.
[15]
Makubela also contended that he was not
contractually obligated to undergo the polygraph test. Makubela
informed the Applicant that
the polygraph test made him ill in the
past and was likely to do so again if he undergoes the test.
[16]
Makubela, as a general worker, dealt
with the picking up a delivering of freights from the airlines to the
bond store and from the
bond store to the head office in lsando. He
did not deal with high or low value goods and did not have access to
any of the systems.
[17]
In the arbitration proceedings Mr Walker
testified on behalf of the Applicant and stated that the use of the
polygraph test was
merely an investigative tool and will not be the
only consideration in determining whether to dismiss an employee. The
employees
were warned repeatedly in meetings that the failure to
undergo a polygraph test may lead to a disciplinary hearing and
possibly
dismissal.
[18]
Walker stated that Mazibuko, in
particular, could assist with the investigation as he worked in close
proximity of the other workers
and may have overheard something.
[19]
Walker contended that the sanction of
dismissal was warranted because of the seriousness of the incident
which may have led to SARS,
as the main taxing authority, revoking
the : Applicant's licence. If this would have occurred numerous
employees would have lost
their jobs. The conduct of the employees
had a negative impact on both the business and the employment
relationship.
[20]
The Applicant then called upon Kuhn, the
imports manager, to testify. Kuhn assured t other people had failed
the test and were not
dismissed but only moved to another department.
Furthermore, that the employment contracts were not
signed by Mazibuko
and Makubela, however, both of them signed an
addendum on 8 February 2007.
[21]
The
Second respondent, in makings his award, made the following findings:
21.1
That
Clause 10.2 of Mazibuko and Makubela's contracts of employment, which
provided that the refusal to undergo a polygraph test
is a serious
breach of the contract which may in turn lead to disciplinary action
or termination of the employment contract, was
'oppaque'.
[2]
This is because the first part of the clause suggested that such
failure to take the polygraph test will amount to a material breach
of the employment contract and thus a repudiation, entitling the
Applicant to terminate the contract.
21.2
It
was held that the second part of the clause seems to suggest refusal
as a form of misconduct and suggests the procedure as envisaged
in
the LRA to determine the fairness, or otherwise of the
termination.
[3]
[22]
The applicant's ground of review is that
"the facts amount to misconduct
or gross irregularity or impropriety under Section' 145(2)( )(i) to
(ii) and Section 145(2)(b)
of the LRA, or (2), that his actions are
not justifiable in terms of the
Reasons
given for them and that
·
he
has accordingly exceeded his constitutionally constrained
powers under Section 145(2)(a)(ii) of the Act."
[4]
Test
for review
[23]
This
test for review has-been cemented in the case of
Gold
Fields Mining South Africa (Pty) ltd (Kloof Gold Mine) v Commissioner
for Conciliation, Mediation and Arbitration and Others
[5]
,
wherein
it was held that there must be a ground listed in section 145(2) of
the LRA present, and the presence of such ground must
render the
award unreasonable. It is therefore a two pronged test.
[24]
In
Sidumo
and Another v Rustenburg Platinum
Mines Ltd and Others
[6]
,
the
Constitutional Court held that Section 145 of the LRA is "suffused"
by the
constitutional standard of reasonableness and that the
test for unreasonableness is:
"is
the decision reached by
a
commissioner
one that
a
reasonable decision-maker could not reach?"
[25]
Furthermore
in reaching such a decision, the Labour Court in
Sasko
(Pty) Ltd v Buthelezi and Others
[7]
,
provided
that a commissioner cannot ignore material evidence in a review, as
such ignorance will amount to misconduct justifying
the setting aside
of a previous award.
[26]
In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions
as
amicus
curiae)
[8]
,
the
Court reaffirmed the
Sidumo
test
as a stringent test allowing the setting aside of the award where the
outcome is entirely disconnected from the evidence or
is unsupported
by evidence or involves speculation by the commissioner.
Applicant's
contention
[27]
The Second Respondent committed, a
serious misconduct in relation to his duties as an arbitrator by
ignoring the fact that Mazibuko,
even though he only dealt with low
value goods, had access to the same systems where high value goods
were also dealt with·.
There was also no reason why Makubela
could not have gained access to the system and thereby could have
assisted in establishing
the identity of the perpetrators. Both
Mazibuko and Makubela had the ability
and
means to gain access to the system
or collaborate with someone who could access the· system.
[28]
The
Second Respondent also misconstrued the evidence as to the size of
the bond store in reaching his conclusion. The Second respondent
stated that the bond office was 160 square meters in area. The bond
office is in reality only 20. square meters.
[9]
This was a material piece of evidence that was misconstrued by the·
Second Respondent. It would therefore be reasonable
to assume that
employees working in a 20 square meter open plan office, would be
able to hear activities or conversations of other
employees within
the office. The information which some employees may have heard in
the office would be pivotal in investigating
the perpetrators in this
incident. The polygraph tests would be the investigative tool to be
used to determine which employees
to question. This was a material
piece of evidence which was not considered by the commissioner.
[29]
Furthermore,
the contractual undertaking by Mazibuko and Makubela to undergo a
polygraph test when requested to do so was a material
issue which was
not adequately considered by the commissioner.
[10]
[30]
The
materiality of the term was confirmed in
Nyathi
v Special Investigating Unit
[11]
,
where
the Court held that it was a material term of the
contract
to
submit to a polygraph test and that the employee, by refusing to do
so had repudiated a material term of the contract entitling
the
employer to terminate the contract.
[31]
Accordingly, the term requiring them to
undergo. a polygraph test was a material term of both Mazibuko an
Makubela's contracts which
placed an obligation on them to undergo
such a test when requested to do so. The failure to adequately
consider the importance
of this, displays the Commissioner's
oversight while considering the facts.
[32]
The
Commissioner committed misconduct in respect of his duties as a
Commissioner as he failed to reach a logical decision related
to the
evidence presented before him,. The Commissioner
failed to give recognition
to Mr
Walker's testimony that the polygraph test itself would be used as an
investigative tool to assist in determining
who the perpetrators
were. The Commissioner regarded this as a 'fishing exercise'
requiring the Applicant to provide evidence proving
a suspicion that
Mazibuko and Makubela could possibly be the perpetrators.
[12]
[33]
The
polygraph test was one of the first steps in such an investigation
and was necessary, but not conclusive, in determining who
the
possible perpetrators may be. This investigation was not given the
opportunity to proceed due to four employees refusing to
undergo a
polygraph test. This was not reasonably considered by the
Commissioner. Furthermore there was evidence lead in the arbitration
that Mazibuko and Makubela were both able to access the systems
necessary to perpetrate the offence. This coupled with the reluctance
of Mazibuko and Makubela to undergo the polygraph test is in itself
suspicious. This would in itself disprove the Commissioner's
own
conclusion, further proving that the Commissioner's decision was not
a reasonable one based on the evidence presented before
him. Gross
irregularity is regarded as being a process standard.
[13]
[34]
In
Herholdt
as
stated above the Court held that for a d fect in the conduct of
proceedings to amount to a gross irregularity as contemplated
by
Section 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result.
[14]
[35]
Commissioners
commit latent gross irregularities where they misconceive the nature
of the inquiry or arrive at an unreasonable result.
[15]
Errors of fact will give rise to a gross irregularity if such errors
cause the Commissioner to misconceive the nature of the inquiry
or
produces an unreasonable outcome.
[36]
Failure
to consider relevant facts constitutes in itself a gross
irregularity, where the applicant is able to prove that it resulted
in an unreasonable outcome.
[16]
[37]
The Second respondent committed such a
gross irregularity in the performance of his duties as an arbitrator
by reaching a conclusion
that is not supported by facts and evidence
presented by the parties. There was no evidence presented to support
the conclusion
that Mazibuko and Makubela's dismissals were
substantively unfair.
[38]
The
Second Respondent committed a gross irregularity in the performance
of his duties by placing considerable weight on the CCMA
decision of
Sosibo
and Others v Ceramic Tile Market
[17]
requiring
a
'reasonable
suspicion that the employee was involved in the incident
prior
to requesting an employee to undergo a polygraph test. Mazibuko and
Makubela were not only contractually obligated to undergo
such a
test, but would do so to assist the Applicant in furthering its
investigation of the incident. This must be distinguished
from
Sosibo
whereby
there was no indication of a contractual undertaking to undergo such
a polygraph test. Furthermore, these tests were actually
conducted in
Sosibo
and
the admissibility of this evidence was disputed.
[18]
[39]
As alluded to earlier, there was an
error of fact as to the size of the office. This placed doubt as to
the importance of conducting
polygraph tests. The office is clearly
of a size to come to reach a reasonable interference that employees
may have
heard discussions relating·
to the incident. This led to a
gross
irregularity and produced an unreasonable outcome.
[40]
The Second Respondent h s failed to
consider Mr Walker's testimony as to the purpose of conducting the
polygraph tests. The purpose,
as alluded to earlier, is to narrow the
investigation to assist in identifying the perpetrator. Evidence was
tendered by Mr Walker
to this extent. The Second Respondent failed to
consider this in deciding that the polygraph tests were not used to
pursue possible.
perpetrators. It is evident that such tests were one
of the steps employed to identify and pursue possible perpetrators,
which
the Applicant was entitled to do in terms of the employees'
contracts of employment.
[41]
The Second Respondent failed to consider
how accessible the system is to the vast majority of the employees at
the bond store. This
further substantiating the need to conduct the
polygraph tests to narrow the search. This was not considered by the
Second respondent
and contributed to the unreasonable decision
reached by him.
[42]
The conclusion reached by the Second
respondent is not one a reasonable decision maker would have reached
upon proper consideration
of the material before him. The Second
Respondent thus failed to properly apply his mind to the material
properly put before him
and took into account irrelevant evidence to
come to his conclusion.
Analysis
[43]
The
Applicant lodged and prosecuted this review application in accordance
with the prescribed time limits. The failure by the Third
Respondent
to file any answering affidavit and/or heads of arguments leave the
Court with one version, that of the Applicant. The
Applicant's.
attorneys filed concise Heads of Arguments on the Third Respondent
failing to attend court, despite a proper notice
of set down being
served. In applying the various tests with regards to review
applications, in particular the
Sidumo
test
where the Constitutional Court (per NAVSA J) set the test for
unreasonableness as follows:
"Is
the decision reached by the Commissioner that a reasonable
decision-maker could not reach?"
[19]
[44]
The fundamentals of the Sidumo test has
been met and so has the components of reasonableness been met showing
that the arbitration
award is not a decision of a reasonable
decision-maker.
[45]
In
Herhold
[20]
the
Supreme
Court of Appeal explained how a reviewing court should go about
deciding a review based on the
Sidumo
test
and what the Applicant must establish.
[46]
Both the employees Mazibuko and
Makabela represented by the Third Respondent herein were
under a
contractual obligation to take a polygraph test and they refused to
do so despite numerous requests. Disciplinary action
was taken
against four employees who refused to take the polygraph test
including these two. All four were found guilty and were
dismissed
whilst only the two represented by the Third Respondent lodged a
referral to the First Respondent's Bargaining Council.
[47]
The Second Respondent misdirected the nature
of the enquiry given the evidence that the requirement
to undergo
polygraph testing was part of an ongoing investigation involving
fraud in the bond store. Both the employees could have
contributed to
this investigation and assisted the Applicant in its investigation
whilst they simply refused to co-operate.
[48]
In
OHL
Supply Chain (Pty) Ltd v De Beer NO and Others
[21]
the labour Appeal Court upheld an award in which the Commissioner
found the dismissal of employees based on their having
"failed'
a
polygraph test remains an important tool at the workplace to detect
deception provided that it is properly administered. A point
blank
refusal to under one whilst it is part of the disciplinary code
and/or conditions of employment is cause for concern.
[49]
I accordingly find that the conclusion of
the Second Respondent is so unreasonable that no reasonable
decision-maker could come to the conclusions he arrived at based on
the evidence before him. This matter goes back to July
2014 and
an appropriate order will be a finding that the dismissal of Mr
Charles. Mazibuko and Mr Abraham Makubela represented
by the Third
Respondent was berth procedurally and substantively fair. There
should be no order as to- costs despite the non-filing
by the Third
Respondent of any answering affidavits, heads of arguments or their
non-appearance at the hearing of this matter.
[50]
In the premises, the following order is
made:
Order:
1.
The arbitration award issued by the
Second respondent acting under auspices of the First Respondent under
Case Number GPR FBC 28155
dated 8 June 2014 is hereby reviewed and
set aside.
2.
The dismissal of Mr Charles Mazibuko and
Mr Abraham Makubela represented by the Third Respondent is found to
be both procedurally
and substantively fair.
3.
There is no order as to costs.
A
Ramdaw
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms M Chenia of CDH Attorneys
For
the Respondent:
No appearance
[1]
No. 66 of 1995, as amended.
[2]
Award paragraph 6.11.
[3]
Award paragraph 6.12.
[4]
Paragraph 53 of the pleadings.
[5]
[2014] 1 BLLR 20 (LAC).
[6]
[2007] 12 BLLR 1097
(CC) at paragraphs 88, 104, 105 and 110.
[7]
[1997] 12 BLLR 1639
(LC) at 1639.
[8]
[2013] 11 BLLR 1074
(SCA) at para 13.
[9]
Award paragraph 6.7
[10]
Award paragraphs 6.3 - 6.9.
[11]
(2011) 32 ILJ 2991 (LC) at para 39.
[12]
Award paragraph 6.16.
[13]
Telcordia
Technologies Inc. v Telkom
SA
Ltd
2017
SA 266 (SCA)
[14]
Herholdt
(supra
id fn 8). Also see:
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC) at paras 32-33
[15]
Supra Note 5
[16]
See also: SA
Transport
and Allied Workers Union on behalf of Zimu and Group 4 Securicor
Services (SA) (Pty) Ltd
(2009)
30 ILJ 1674 (CCMA
[17]
(2001) 22 ILJ 811 (CCMA).
[18]
Id fn 6.
[19]
Id
fn 6
[20]
Id fn 8.
[21]
[2014] 9 BLLR 860
(LAC)