THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR731/24
In the matter between:
SECURIFORCE CC Applicant
and
LETSEMA MOKOENA N.O. (As Commissioner) First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
JOHN MOKITLANE NTHOLENG Third Respondent
Heard: 18 March 2025
Delivered: 21 August 2025
JUDGMENT
ERASMUS, AJ
Introduction
2
[1] This is an application for the review and setting aside of an arbitration award
issued by the First Respondent (the Commissioner) under case number FSBF4824 -
23, dated 22 March 2024, in terms of which the Commissioner found that the
dismissal of the Third Respondent, Mr Ntholeng (Ntholeng), was procedurally fair but
substantively unfair and awarded him compensation equal to two months’
remuneration.
[2] The application is in terms of section 145 of the Labour Relations Act
1 (LRA)
and came before this Court on an unopposed basis.
Factual background
[3] The Applicant’s principal business consists of providing security services to its
clients.
[4] Ntholeng was employed by the Applicant as a security officer, and at the time
of his dismissal, he was placed at the site of the Applicant’s client , Shoprite
Checkers.
[5] Prior to his employment, Ntholeng underwent training and passed the integrity
test (polygraph), qualifying him to be placed in high- risk areas. He signed a contract
of employment which provided, amongst others, as follows:
‘The Employee acknowledges that the Employer’s business is vulnerable to
numerous and various forms of dishonest and unlawful acts which, while
extremely difficult to detect, are capable of prejudicing the viability of the
business and the employment security of all employees, and in the light of the
afore-going, the Employee expressly agrees to:
…
15.2.2 Submit him/herself to polygraph examinations to be conducted by any
person designated by the Employer, wherever the Employer deems it
necessary. A refusal to undertake the polygraph test would allow the
1 Act 66 of 1995, as amended.
3
Employer to draw a negative inference and would amount to a material breach
of this contract of employment which will result in disciplinary action, including
dismissal.
15.2.3 The Employee acknowledges that the Employer’s operational
requirements are such that it is necessary that an E mployee must be
completely trustworthy in the Security Industry. Should the Employee who has
been subjected to a polygraph examination not pass the examination to the
satisfaction of a person properly qualified to conduct such examination, the
Employee shall forthwith be deemed to be incapable of continuing to perform
work at the Employer. The parties shall then enter into a consultative process
where the parties shall strive to find suitable alternative employment where
the employee is not required to perform work of a security nature. If this is not
possible, then an incapacity process will be followed. The E mployee hereby
irrevocably agrees that failure of a polygraph examination is a substantively
fair reason as an operational requirement to embark upon an incapac ity
procedure due to the impossibility of the employee to perform to the required
standard set in terms of the contract of employment. Should the employee fail
to pass the Polygraph examination, the employee agree that he/she will be
held responsible for payment of the test on the employees account and
cannot hold the company liable for same.’ (sic)
[6] In terms of his contract of employment, Ntholeng also agreed to the terms and
conditions of the Applicant and its client. He furthermore agreed to be subjected to
polygraph testing every six months and to be removed from the client’s site if the test
results show deception.
[7] It was common cause that the client requested its own staff, Ntholeng and the
other security officers to undergo polygraph testing due to the client having
experienced stock shrinkages. It was further common cause that Ntholeng had failed
the polygraph test and was removed from the client’s premises.
the polygraph test and was removed from the client’s premises.
[8] A facilitator was appointed by the Applicant to conduct the proceedings to
determine whether there were alternatives to the termination of his employment. At
4
the end of the process, t he facilitator recommended that Ntholeng’s employment be
terminated due to incapacity.
[9] The Applicant’s Retail Manager testified at arbitration , and so did the
polygraph examiner. The polygraph examiner found that Ntholeng was not truthful
when he answered some of the questions posed to him during the examination.
[10] Ntholeng was then provided with an opportunity to make a statement, setting
out the reason(s) why he thought he had failed the test. Ntholeng made a statement ,
and in doing so, he indicated that he had received money from customers in return
for ensuring that their bicycles or their wheelbarrows with beer i n them were not
stolen. He further confirmed that , in receiving this money from the customers, he
ensured that the manager did not see him receiving the money, as he knew he was
not supposed to receive money from the customers and that he had received
approximately R180 during the preceding six months. He also admitted to seeing
that the damaged stock, which was on the pallets, would disappear and believed that
the staff were consuming the stock.
[11] The Commissioner found that the results of the polygraph test were valid on a
balance of probabilities. He also found that Ntholeng was not dismissed for failing
the test, but was removed from the client’s premises in terms of the contract between
the Applicant and its client. The Applicant then attempted to find alternative
employment for Ntholeng, which it failed to do, and he was dismissed.
[12] The Commissioner found the dismissal to have been substantively unfair only
due to Ntholeng having been dismissed for incapacity as opposed to the Applicant’s
operational requirements , which operational requirement dismissal would have
entitled him to severance pay. He awarded him two months’ salary as compensation.
Grounds of review
[13] The Applicant contends that the Commissioner misconstrued the nature of the
[13] The Applicant contends that the Commissioner misconstrued the nature of the
enquiry in that he failed to take into account the evidence that was before him ,
particularly the evidence of the facilitator and in respect of the contract , which
5
indicated that Ntholeng was dismissed for incapacity and not for operational
requirements.
[14] The Commissioner stated in his award: ‘I must admit, it was the first time I
heard of this concept “incapacity due to operational requirements ”. I nevertheless
allowed myself the opportunity to listen to evidence so that I am able to determine
the real nature of the dispute and resolve it’.
[15] In analysing the evidence presented, the Commissioner accepted that
Ntholeng was not dismissed for failing the polygraph test, but was removed from the
client’s premises after failing the polygraph, as per the agreement between the client
and the Applicant, whereafter it sought alternative employment for Ntholeng, to no
avail.
[16] The Commissioner then set out that he had juxtaposed the schedules of the
LRA that deal with dismissals for poor work performance and ill health incapacity and
found that those schedules did not apply to the facts at hand. He was then left with
the concept of dismissal for operational requirements.
[17] The Commissioner continued to explain that he was intrigued and found it
peculiar that the Applicant had opted for so-called ‘incapacity due to operational
requirements’. This caused the Commissioner to then juxtapose the facts of the
matter with the process and requirements in terms of an operational requirement
dismissal. He concluded by stating that he is ‘ not able to reconcile incapacity and
operational requirements in one process’ and that in his view ‘something has to give’.
[18] He concluded that the Applicant had conflated the issues and had failed to
consider operational requirements as the appropriate route.
[19] In dealing with the dispute, the Commissioner was very much alive to the fact
that the Applicant and its witness insisted that it was a dismissal for incapacity as
provided for in the contract of employment. However, the Applicant seems to steer
away from the same contract which also provides that the employee acknowledged
away from the same contract which also provides that the employee acknowledged
that ‘the Employer’s operational requirement s are such that it is necessary that an
6
Employee must be completely trustworthy ’ and that the polygraph and subsequent
process will be followed and potentially result in dismissal in the event of the
employee failing the polygraph test.
[20] The Applicant’s insistence that it was a dismissal for reasons relating to
incapacity does not mean that the Commissioner misconstrued the nature of the
enquiry. He clearly dealt with the Applicant’s contention and the evidence before him
and found that it should have been an operational requirement dismissal and not an
ill health dismissal. It cannot be said that the Commissioner misconstrued the nature
of the enquiry and that his conduct in this respect constitutes a reviewable
irregularity.
[21] Unlike the contention of the Applicant that Ntholeng was no longer capable of
performing his duties, it is clear that he was capable and that it was the Applicant’s
operational requirements that caused him to be removed from the client’s site and
his services being terminated when no alternative employment could be found for
him.
[22] The Applicant’s own witness , who facilitated Ntholeng’s exit from the
Applicant, stated in her report that Ntholeng failed to meet the ‘ operational
requirement of passing polygraph tests ’, which had been ‘ put in place to protect the
interests of the Company’.
[23] The Applicant further contended that the compensation awarded was
extremely excessive , considering that Ntholeng’s services were terminated due to
incapacity and that the Commissioner gave no justification for an award of two
months’ salary as compensation. These contentions hold no water.
[24] In his award, the Commissioner stated that it would not be possible to order
reinstatement or re-employment of a security guard who had failed a polygraph test
and where there are no alternatives available for him within the Applicant. He then
stated that he took into consideration that Ntholeng was employed on a permanent
stated that he took into consideration that Ntholeng was employed on a permanent
basis rather than a contract basis, which he commended the Applicant for . It was
also common cause that Ntholeng had been in the Applicant’s employment for eight
7
years before being dismissed. The Com missioner then indicated that, had Ntholeng
been dismissed for operational requirements , which is the reason for his dismissal,
he would have been entitled to severance pay. He therefore found it just and
equitable to award Ntholeng two months’ remuneration.
[25] The Commissioner’s award cannot be faulted. He provided justification for his
award of compensation, which certainly does not fall outside the bounds of
reasonableness.
[26] In the premises, the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: T Moyo of Snyman Attorneys
For the Third Respondent: No appearance