GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) [2021] ZALCJHB 356 (13 October 2021)

GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) [2021] ZALCJHB 356 (13 October 2021)

The Court held that the arbitrator's decision to uphold the dismissal was reasonable and not reviewable. The arbitrator was not required to rule on the expert evidence regarding the classification of polygraph tests, as this was outside his competency and the Health Professions Council was not a party to the proceedings. The employees had contractually agreed to undergo polygraph testing and had confirmed this in a collective agreement. The polygraph test was not classified as a psychological test by the Health Professions Council, and there was no express legal prohibition. The omission to deal with the expert evidence did not render the award reviewable. The review application was...

Citation
[2021] ZALCJHB 356
Parties
Applicant: GIWUSA obo Malemone Edwin & 2 Others; Respondent: J Mashaba NO; Respondent: Statutory Council for the Printing, Newspaper & Packaging Industry of South Africa; Respondent: Silveray Stationery Company
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2021
Case Number
JR1124/19
Procedural Posture
Review Application / Judgment
Outcome
Review application dismissed. No order as to costs.
Judges
M Baloyi
Legal Topics
Review of Arbitration Award, Polygraph Testing, Employment Contracts, Psychological Testing, Employment Equity Act Section 8
Labour Law Review of Arbitration Award Polygraph Testing Employment Contracts Psychological Testing Employment Equity Act Section 8

Case Brief

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Parties

GIWUSA obo Malemone Edwin & 2 Others

Applicant

J Mashaba NO

Respondent

Statutory Council for the Printing, Newspaper & Packaging Industry of South Africa

Respondent

Silveray Stationery Company

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the instruction to undergo a polygraph test was lawful under section 8 of the Employment Equity Act.
  2. 2 Whether the arbitrator's award upholding the dismissal was reviewable for failure to consider expert evidence.
  3. 3 Whether the employees' refusal to undergo polygraph testing constituted misconduct justifying dismissal.

Ratio Decidendi

The Court held that the arbitrator's decision to uphold the dismissal was reasonable and not reviewable. The arbitrator was not required to rule on the expert evidence regarding the classification of polygraph tests, as this was outside his competency and the Health Professions Council was not a party to the proceedings. The employees had contractually agreed to undergo polygraph testing and had confirmed this in a collective agreement. The polygraph test was not classified as a psychological test by the Health Professions Council, and there was no express legal prohibition. The omission to deal with the expert evidence did not render the award reviewable. The review application was...

Court Disposition

Review application dismissed. No order as to costs.

Orders

  • The review application is dismissed.
  • There is no order as to costs.