Polygraph and truth verification tests have been around for some time. You won’t need to look far to find someone with an opinion on these tests, with those claiming that they are all but infallible, to those who doubt their accuracy. Regardless, these tests are often administered by employers in the investigation of, primarily, dishonesty misconduct cases.
We know from years of case law that polygraph and truth verification tests, in their various guises, can be used as corroborating evidence, which supports more direct evidence, but that such test results will never be enough, on their own, to meet the burden of proof on a balance of probabilities.
But what if an employee refuses to consent to undergoing a polygraph, or truth verification, test? Does this amount to misconduct? Is such refusal a dismissible offence?
This very issue was dealt with in a recent (22 May 2019) Labour Court judgment in Bidvest Protea Coin (Pty) Ltd v Mbongeni Ernest Ngcobo [Case number 260/17].
The judgment outlined the background facts – “In terms of the employment contract between the parties, the first respondent (the employee) consented to undergo a polygraph or truth verification test as and when requested to do so by the applicant (the employer). The applicant (employer) conducts these tests randomly and on any selected employees”.
So, first and foremost, the employee had signed a contract of employment which specifically, amongst other things, obligated the employee to undergo a polygraph or truth verification test, when requested to do so by his employer.
However, sometime later, the employee was selected randomly for such a test, and “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)”.
At arbitration, the arbitrator held “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. 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”.
The employer challenged the arbitration award, taking on review to the Labour Court, arguing 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”.
The Labour Court agreed with the employer – “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. 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”.
Quite rightly, the judgment ordered that “The arbitration award issued by the second respondent (the arbitrator) is reviewed and set aside. The arbitration award is substituted with an order that the third respondent’s dismissal was fair”.
This judgment reminds us that it is important to include compulsory polygraph tests, when requested, in contracts of employment are entered into at the commencement of an employment relationship. In the absence of such up-front agreement, it is arguable that an employee can reasonably refuse to undergo such tests.
As uncompassionate as it may sound, employers are not obligated to employ an employee, who is habitually absent on grounds of ill health, indefinitely. ‘Incapacity’ is one of the three species of dismissal in our law, with the other two being ‘misconduct’ and ‘operational requirements’ (retrenchments, in the main).
Section 11 of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal), gives specific guidelines on what is expected of employers who dismiss employees on grounds of ill health or injury. It’s worth looking at what this section tells us, it reads “Any person determining whether a dismissal arising from ill health or injury is unfair, should consider (a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable – (i) the extent to which the employee is capable to perform the work; (ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and (iii) the availability of any suitable alternative work”.
Make no mistake, quite rightly, employers need to tread carefully when contemplating the dismissal of an employee on grounds of ill health or injury. Let’s face it, we all get sick at times, and may befall an unavoidable injury, and we would want our employer to show some patience and compassion with us. That, in a nutshell, is what the Labour Relations Act tells employers to do, before contemplating dismissal.
Whilst some employers have temporary and permanent risk benefits which are available to their employees in circumstances of this nature, it is not always the case. Many employers do not have such risk benefits for staff, as cost to company remuneration structures become more common-place. On the other hand, some employers simply can’t afford to offer such risk benefits to their staff.
So, if an employee is excessively absent, on grounds of ill health or injury, and there are no risk benefits, what are the options available to the employer? Section 11 of Schedule 8 of the Labour Relations Act, largely provides the answer.
So, does case law, which help us understand how the relevant legislation and the Code of Good Practice, are to be interpreted and applied in practice.
The Supreme Court of Appeal, in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA), confirmed that “an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. And it may, if it be fair in the circumstances, exercise an election to end the employment relationship”.
A recent Labour Appeal Court judgment (27 June 2019) casts more light on this subject. It was the case of Parexel (Pty) Ltd v Chakane & others (Case number JA39/2018) which, amongst other things, noted that “It is self-evident that whether an employee is willing and able to work and when she may be in a position to do so are material considerations to which regard must be had when considering an employee’s incapacity, whether she has been absent from work for an unreasonably long period of time and whether alternatives to dismissal exist”.
The judgment continued that “The appellant (employer) was not required to hold the employee’s position open for her indefinitely when she had failed to provide any clear basis as to the reasons for and anticipated extent of her continued absence”.
The employer held an incapacity hearing to assess the viability of the ongoing employment of the employee, on grounds of incapacity. In this regard, the Court held that “The appellant (employer) proceeded by way of an incapacity enquiry to determine whether the employee’s absence from work had been unreasonably long or not. Implicit in such a determination was a consideration of the reasons advanced by the employee for her absence and the extent of such absence. Since very distinct reasons had been provided by different doctors for the employee’s absence, the appellant requested the employee to provide it with a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within such recovery could be anticipated. Yet, in spite of offers of assistance made by the appellant to the employee, no such medical report was provided by her”.
In the final analysis, employers must make reasonable accommodation of ill health or injury related employee absenteeism. Indeed, the job specification and work environment, if possible, should be modified the accommodate the employee. Suitable alternative positions should also be considered, if such options exist.
That said, employers are not obligated to endure prolonged ill health or injury absenteeism indefinitely.
We know that too severe a sanction in a disciplinary hearing amounts to substantive unfairness.
The dilemma facing employers in the selecting of a sanction, and more especially the sanction of dismissal, was highlighted in the recent (13 June 2019) Labour Appeal court judgment in Hosea Mushi v Exxaro Coal (Pty) Ltd Grootgeluk Coal Mine (Case number JA62/2018.
The facts of the case were quite straight forward, with the background perhaps best summed up in the judgment – “The appellant had been employed by the respondent, Exxaro Coal (Pty) Ltd, at Grootegeluk Coal Mine for 24 years when he was dismissed. On 10 March 2015 at around 22h50, he was on duty driving an oversized coal haul truck, the wheel size of which exceeded the height of two adults. He reported to his foreman that the shovel operator was loading the truck in an unsafe manner. The foreman instructed the appellant to continue loading and undertook to observe the loading process. Shortly thereafter the foreman informed the appellant via radio that he would board the truck at the loading area. The appellant refused to let the foreman board the truck at this area. As the foreman walked towards the loading area the appellant moved the truck forward causing the foreman to have to move out of the way.
At the ensuing disciplinary hearing, the appellant admitted that he had behaved improperly, but not that he had undermined the authority or threatened the life of the supervisor. The disciplinary code, which was stated to be a guideline, provided for a final written warning for misconduct of the nature committed. The appellant was nevertheless dismissed from his employment on 29 April 2015, for having refused to obey an instruction of a foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck after the foreman was proceeding towards it”.
So there you have it. Unfair said the employee, who referred an unfair dismissal claim at the CCMA where “the parties agreed that the misconduct committed was not in dispute and that the issues for determination by the arbitrator were the appropriateness of the sanction and the issue of consistency since the foreman had not been disciplined”.
I short, the arbitrator agreed, with the arbitration award stating that “‘The three charges are mutated of one another. The number of the charges by mutating them does not make the act to be more severe than it would ordinarily be. In any event, there is no dispute about the fact that it is not a dismissible offence at first instance. The respondent is not correct when it argues that it has a zero-tolerance attitude towards an offence of this nature.’
In finding the sanction of dismissal imposed on the appellant to be inappropriate, the arbitrator had regard to the fact that the appellant had not been charged with gross insubordination, there were no aggravating circumstances present to prove that progressive discipline was inappropriate, the appellant had a long period of service, a clean service record and had shown remorse for his conduct. The dismissal was found to be unfair and the appellant was reinstated retrospectively into his employment with the respondent, with no loss of remuneration and back pay awarded in the amount of R77 398.72. A final written warning was imposed on the respondent operative from the date of his reinstatement, to expire on a date as prescribed by the respondent’s disciplinary code”.
A Labour Court review, however, disagreed with the Commissioner, and held that “The Court took the view that it did not matter that the misconduct committed by the appellant had not been termed “gross” insubordination and that since the appellant had admitted endangering the life of the foreman, it was inconceivable that dismissal was not a fair sanction. The award of the arbitrator was therefore set aside on review on the basis that it was so unreasonable that no other reasonable arbitrator could have come to the same conclusion. The award was substituted with an order that the dismissal of the appellant was fair, with no order as to costs made”.
The Labour Appeal Court, in turn, disagreed with the Labour Court, holding that “While health and safety issues, particularly in the mining industry, is of paramount concern, no evidence was put up to show that the foreman’s life was endangered as a result of the appellant’s conduct. The appellant admitted that he had erred in his conduct and showed remorse for it. The arbitrator’s finding that the three charges related to the same misconduct did not amount to an irregularity in the conduct of proceedings when regard is had to nature of the misconduct, which the parties had agreed to be common cause. In addition, the failure to charge the appellant with “gross” misconduct did not alter the nature or degree of the misconduct committed on the facts of this matter. Nevertheless, the arbitrator had regard to the material before him in the manner he was required. This included that the respondent had a clean disciplinary record, long service and the disciplinary code recommended a final written warning for the type of misconduct committed. Endorsing the concept of corrective or progressive discipline, the arbitrator arrived at the conclusion that the imposition of the sanction of dismissal was too harsh”.
Our courts have rendered contradictory judgments regarding whether, or not, employers are allowed to schedule disciplinary hearings after an employee has resigned. In the Public sector, due to a prevailing collective agreement, the position is quite clear, an employee may resign at any time prior to a disciplinary hearing being finalised, at which time the disciplinary hearing stops. This enables, wrongly in our view, employees to avoid possible sanction for misconduct, serious or not.
But that’s the Public sector. The position in the private sector has been less clear. On 24 May 2019, the Labour Court, in Tristyn Naidoo & Sedayshum Naidu v Standard Bank SA (Ltd) & 1 other (Case number J1177/19) was once again required to answer this question.
In this instance, the applicant’s challenged the jurisdiction of the respondent “to continue with the disciplinary hearing post their resignation” and to interdict the respondent from proceeding with their scheduled disciplinary hearing post their resignation.
Both applicants had been employed as equities traders up until their resignation. On 4 March 2019, the applicants were issued with notices of precautionary suspension, which noted that “the nature of the allegations against the applicants was serious and that if proven, could impact on the trust relationship between them” and the respondent. After having attended various meetings with forensic investigators, the applicants were issued with notices to attend a disciplinary hearing on 16 and 22 May 2019. Two allegations of “gross misconduct”, and one of “dishonesty” were levelled against the two applicants. The applicants tendered their letters of resignation the same day “with immediate effect”.
Later that day, the applicants received identical correspondence from the employer’s Head of Human Resources, amongst other things, stated that “the Bank is not amenable to accepting your immediate resignation and will still hold you to your 28 days’ notice period as contractually obligated and will be continuing with our internal process. The disciplinary enquiry will therefore proceed as scheduled ..”.
The applicants replied to this by stating that “it is trite in law that my resignation is a unilateral termination of the employment contract and is therefore not subject to Standard Bank’s acceptance or approval. In light of the fact that this is an effective termination of the employment relationship, Standard Bank cannot proceed against any person who is no longer an employee of the company”.
The applicants then approached the Labour Court, which was required to determine whether “the applicant’s immediate resignation had the effect of immediately terminating the employment relationship and whether Standard Bank has the right to hold the applicants to their notice periods and if so, whether it can proceed with the disciplinary enquiries against them despite their resignation with immediate effect”.
In reviewing the effect of resignation in case law, the Court began by referring to Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC), which held that resignation is a unilateral termination of a contract of employment by the employee. This view was reiterated in Toyota SA Motors (Pty) Ltd v CCMA & others (2016) 37 ILJ 313 (CC), which held that “Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee any more”.
The Labour Court held that Standard Bank “has no power to discipline the first and second applicant’s subsequent to their resignation with immediate effect, and Standard Bank was interdicted from continuing with the disciplinary enquiries.
The Court acknowledged that the applicants were in breach of their contracts of employment. However, the remedy available to the ‘employer’ is to either “hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may accept the employee’s repudiation, cancel the contract and claim damages”.
The judgment noted, in essence, that holding disciplinary hearings after an immediate resignation, was a form of employer “self-help .. and this Court can’t sanction” such self-help.
So, there we have it, in cases of immediate resignation, an employee does not work out their notice period, and the resignation takes effect immediately.
‘Jobs for cash’ is not a new phenomenon. We observe this with clients on a quite frequent basis. It’s quite simple. Someone within the company, with influence over recruitment and selection decisions, accepts cash to ensure a job applicant’s employment. It can occur with human resources staff, and line management alike.
One such case on this issue was that of Mphela Zebulon Matlou v Exxaro [CCMA arbitration: case number LP5338-14]. In this case, “the boyfriend to her younger sister had paid another man the money as he promised that he would get the jobs for them. They had recorded their conversation with him”.
The arbitration awarded noted that “The applicant told him that he knows one Wiseman who can arrange a job for him. But this Wiseman will need R5000-00. In the presence of his parents he gave the applicant R5000.00 and his CV. His girlfriend’s sister was also looking for a job so he gave the applicant another R5000.00 and her CV. In total, he gave the applicant R10000-00”.
This all too familiar scenario continued as “Time went by and the applicant started avoiding his calls. He sent the applicant sms. He even confronted the applicant several times to repay the money even if it was in instalments”.
Yet a further witness testified that “She went to Lephalale to give Piet R5000-00 to give it to the applicant. Piet provided her with the contact details of the applicant. Within a week she contacted the applicant who indeed confirmed receipt of the money and the CV. They contacted each other and she would even ask the applicant how far he was. The applicant advised her to be patient. After Easter week-end they met in Polokwane. The applicant promised her that after July things would be fine. After July, she started calling the applicant who was ignoring her calls. The applicant knew her two numbers and when she called on a different number she would respond. She told her that July had passed and that she then demanded her money. She met the applicant at the Steers in Lephalale. She was in the company of her boyfriend. She bugged their conversation.
She further contacted the applicant around November and December he promised to repay her in February. Later the applicant reneged on the agreement saying they did not sign and there was nothing she could do to him”.
Needless to say, no jobs were forthcoming. The dismissal of the employee for “selling jobs” was upheld by the CCMA.
In the further case of ITU obo Monica Zulu v Tiger Brands Albany Bakery (Pty) Ltd [CCMA arbitration: Case number GAJB26681-14], the employee was dismissed for “soliciting payment in return for a permanent job”. In this case, the evidence was that the dismissed employee informed job applicants that they were required to pay a R50,00 “joining fee” and an additional R500,00 payment “was to make sure he secured a permanent position with the” employer.
In Paul Maboya v Setloblox (Pty) Ltd [CCMA arbitration: Case number 10305-17], the dismissed employee had informed two job applicants that “they had to pay him R2 000.00 each in order for them to secure employment”. Two job applicants “borrowed it (the money) from their relatives as they were desperate for employment”.
The arbitration award continued that “The 2 witnesses became anxious when the applicant stopped communicating with them and they were still unemployed in January as promised. They lodged a complaint with the respondent about their apparent swindling at the hand of the applicant”.
The Commissioner rightly held that “the applicant took advantage of their anxiety to earn income by extorting money that they did not have to benefit himself. The applicant knew that his conduct was wrong because he covertly arranged to meet with the 2 witnesses in places payment from the destitute and vulnerable job seekers, where the exchange of monies would not be obvious to his employers …. (the employee received) payment from the destitute and vulnerable job seekers”.
This is a somewhat difficult, clandestine, activity which is difficult to uncover in the absence of whistle blowers. Vigilance in recruitment and selection goes some way in deterring and identifying this uncouth practice.
Racism, in all its forms, is abhorrent, and if proved, is quite clearly grounds for dismissal. That said, it is equally unpalatable for employees to level untrue allegations of racism. This was a central theme in the recent CCMA arbitration award in NUMSA obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).
This circumstances which led up to this case were that, on the day in question, the employees were playing cards outside of the employer’s premises during their tea break. The Chief Executive Officer (CEO) of the employer stopped, with his vehicle at the gate, called at the employees, got out of his car and walked towards the employees angrily, allegedly using the f-word whilst addressing them.
On the evidence, the employees then attempted to talk to the CEO after the incident in his office, but he refused to give them a hearing.
The employees were subsequently issued with a notice to attend a disciplinary hearing.
On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the Human Resource manager wherein they alleged that the CEO called them “Kaffirs” whilst admonishing them for playing cards outside the employer’s premises. This was in response to them having been charged with insubordination in that they did not adhere to an instruction that they should not play cards outside the employer’s gate. The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.
The employees were then issued disciplinary hearings notices for making false allegations of racism against the CEO; they were found guilty and dismissed.
In the arbitration award, the Commissioner noted that “I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that (the CEO) could not have called them in a racial derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words was utilized during this altercation. They argued that (the CEO) cannot speak Afrikaans but that he is English speaking. The applicants, on the other hand, stood by their claim that such racial terminology was used”.
The Commissioner continued that “The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K…..s), idiots and other swear words”, and that “It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants”.
The CEO, whilst acknowledging that he was angry, and used the f-word, stringently denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. (The Commissioner) requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’”.
The CEO had not used the k-word, concluded the Commissioner, who held that “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word. There was no racial or discriminatory language used towards the applicants when addressed by the CEO on 7 October 2018. It is clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day”.
Quite rightly, the Commissioner, in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career at O-Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable”.