SUMMARY
The Applicant Hilary Construction (Pty) Ltd (“Hilary”) instituted review proceedings in the Labour Court, against the Commission for Conciliation, Mediation and Arbitration (the “CCMA”) as First Respondent, Mr C. Maande as Second Respondent and Ndanduleni Silima as Third Respondent in respect of Section 145 of the LRA, which relates to a perceived defect of a commissioner’s award in the CCMA. The Applicant was a construction company and employed the Third Respondent as a driver from 2010 to 2018.
On 27 November 2013, the Third Respondent was part of a team working on site, when 27 litres of diesel was reported missing from a container located thereon. Only two people had sets of keys to the container. They included a mechanic and the Third Respondent, the third set was kept in a cubbyhole of a truck nearby to which a security guard had access. Pursuant to the theft the keys were no longer kept in the cubbyhole but handed over to the site supervisor Mr Chuene.
On 7 December 2013, a further 195 litres of diesel was stolen from the same container. Investigations revealed that there was no evidence that the lock had been tampered with, thereby indicating that the key was used. Further, the same security guard was on duty both times – by the second time the theft was discovered the security guard had deserted his employment and never returned. At the time of the thefts, the mechanic, Mr Chuene, and the Third Respondent all underwent polygraph tests. The Third Respondent’s results indicated deception, where the results of Mr Chuene and the mechanic did not.
In light of the polygraph tests, a disciplinary hearing was held on 14 February 2014, and the Third Respondent was found guilty of the charge of theft and
subsequently dismissed. The Third Respondent took the matter to the CCMA wherein he alleged an unfair dismissal. The matter could not be resolved at conciliation, and the Second Respondent was appointed by the First Respondent in order to arbitrate the dispute. Three witnesses were called to testify on behalf of the Applicant, including the polygraph tester and the Operations Manager for the Applicant. In light of the first theft, no one was charged, however, it was discovered that the Third Respondent possessed a duty of care in respect of the company’s assets including the diesel container.
The Third Respondent denied any knowledge of the two incidences of theft and could not explain why the security guard had absconded thereafter. The Third Respondent thus disputed the findings of the polygraph test. According to the Second Respondent’s findings at the hearing, the Applicant (as Respondent in CCMA proceedings) did not adduce any direct or circumstantial evidence to substantiate its case against the Third Respondent (as Applicant in the CCMA proceedings). However, they placed significant weight on the findings of the polygraph test in order to find the Third Respondent guilty of the theft it alleged.
Furthermore, the Applicant failed to consider the likelihood of the security guard having committed the theft and absconding thereafter, as he too could have easily been in possession of a set of keys to the container. Case law was considered wherein it was stated that a polygraph test on its own cannot be used to determine guilt of an employee, although it can be used where other supporting evidence is available, provided that a professional conducts the test.[1]
The result of a properly conducted polygraph is merely evidence in corroboration of the employer’s evidence and may admissible in terms of assessing the credibility of a witness and only in respect of probabilities. Further, the refusal by an employee to undergo a polygraph test should not be used in order to draw a negative inference. In the circumstances, the Second Respondent found that the dismissal was not for a fair reason and awarded the Third Respondent six months compensation.
Grounds of Review
The following grounds of review regarding the Commissioner’s award were submitted:
- that the Applicant had not failed to adduce direct or circumstantial evidence that supported its submissions that only three employees had a set of keys;
- the Third Respondent was in charge of completing the daily fuel site log book and would take meter readings on vehicles and report back to management, further, the Third Respondent lived a lot closer to the site; and
- the Third Respondent was, at the time of the first theft, responsible for placing the spare key in the cubbyhole of a truck nearby.
HELD
The court considered further case law in order to deduce that the opinion of a polygraph operator was unlikely to qualify as expert evidence, and it would be wrong to treat it as such. A polygraph test is to be the used as indicator in terms of whether an investigation should be conducted and thus cannot in itself establish guilt.[2] Case law concludes that the weight attributable to polygraph tests remain an open question, but any person who wishes to rely upon it must bring expert evidence as to the accuracy thereof.
In light of the aforementioned precedent, the Court in the current matter was of the opinion that little reliance can be placed on a polygraph test in order to establish the guilt of an employee. The Court held further that the Applicant placed too much emphasis and reliance on the test, in the sense that two other people (the mechanic and Mr Chuene) had access to a set of keys and thus, both had the opportunity to remove the diesel from the container.
The other possible suspect would be the security guard, who in all likelihood would have conspired with the “thief” in order to remove the diesel. Notwithstanding the fact that he absconded from his employment shortly thereafter. The Court thus contended that the possibilities were numerous and in order for the Applicant to succeed on review, they would have to illustrate that the Second Respondent was wrong in his factual findings. The Court was in this case, dissatisfied with the grounds of review the Applicant relied upon and thus was of the opinion that a proper case had not made before it for the relief sought. The application was therefore dismissed.
VALUE
In Labour Court proceedings, specifically those dealing with unfair dismissals due to alleged misconduct, the weight given in respect of polygraph tests remains an open question, however, any litigant wishing to rely upon it must bring expert evidence as to the accuracy thereof. Further, polygraph tests on their own cannot be used to determine an employee’s guilt in these cases.
Written by Divina Naidoo and supervised by Charlotte Clarke, 15 November 2018
[1] Truworths (Pty) Ltd v CCMA & Others (2009) 30 ILJ 677 LC.
[2] DHL Supply Chain (Pty) v NBCRFI (2014) 9 BLLR 860 (LAC).
