Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR658/01
2001-09-11
In the matter between
WITHNEY WABELA MOROTA Applicant
and
DR LAURA NENE Respondent
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J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is an application for the review of an arbitration award issued by the
second respondent, an arbitrator who conducted an arbitration under the
auspices of the first respondent, and made an award in favour of the
third respondent, the erstwhile employer of the applicant. The applicant
was employed by the third respondent as a security guard.
2.She stated at the arbitration hearing that she employed a security guard as
she was very concerned with her safety, and that the applicant had
performed very well as a security guard. She testified that in an
incident which occurred prior to the one giving rise to the dismissal
that the applicant had once, apparently in a moment of losing his
temper, pointed a gun at the third respondent's secretary. She had
dismissed both of them at the time, but felt sorry for them when they
later asked for their positions back, and reemployed them. This, she
stated, she did regretfully.
3.At the beginning of 2000 the applicant received a phone call and
subsequently had a meeting with members of Crime Stop, and they informed
her that the applicant, and a person employed by the third respondent as
a cleaner, had conspired to assassinate her and make it look like a
robbery.
4.Subsequently the third respondent hired a private investigator, Mr Slang
van Zyl, to investigate the matter. During his investigations a
polygraph test was conducted on the cleaner and the applicant. The
findings of the polygraph test was that the two parties scrutinised were
"deceptive". The third respondent decided to suspend the applicant, but
towards the end, as she stated, she impulsively dismissed him.
5.The applicant attacks the fairness of his dismissal both on procedural and
substantive grounds on review.
6.Insofar as the substantive fairness is concerned, I am aware that guilt on
the part of an employee may not be established solely on the findings of
a polygraph test, and in most cases it should not be admitted as
evidence, because of the inherent unreliability in such tests.
7.However, on the facts of this case, the second respondent listened to
evidence, rejected the version of applicant, and therefore it cannot be
said that he did not apply his mind to the facts.
8.It must also be remembered that there was a previous occasion on which the
applicant had pointed a gun at an employee in the presence of the third
respondent. The third respondent did not make up her mind in favour of
dismissing the applicant, based solely on the findings of the polygraph
test conducted, but on what an informant had told her. She was phoned by
the police and given the information and warned about the conspiracy.
9.It has been held that an employer who suspects an employee of theft has
adequate grounds to dismiss. In the circumstances of this case the
adequate grounds to dismiss. In the circumstances of this case the
second respondent cannot be criticised for finding that there were
enough facts present on which to find the dismissal to be the
appropriate sanction.
10.With regard to the question of procedure, it is so that there was a
complete absence of procedure. But it would be a sad day where if an
employer who believes, on sound information given to him or her, that
the employee who has conspired to kill her should be entitled to 12
months remuneration as compensation.
11.I therefore also decline to interfere with the decision of the second
respondent, that the dismissal was procedurally unfair.
12.In terms of Schedule 8 of the Labour Relations Act, 66 of 1995, there
should normally be an investigation, but there could be exceptional
circumstances where a hearing cannot be held.
13.My view is in these circumstances there was ample reason not to have a
disciplinary inquiry.
14.In the circumstances the application is dismissed.
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E. Revelas