Goldplat Recovery (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR488/2019) [2021] ZALCJHB 48 (3 February 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHAANESBURG

Not reportable

Case No: JR 488/2019

In the matter between:

GOLDPLAT RECOVERY (PTY) LTD

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION &

ARBITRATION

First Respondent

EPHRAIM SEKELE N.O Second

Respondent

JOSIAS CHICO MAZIYA

Third Respondent

Heard: 26 January 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court's website and released to Saflii. The date and time for hand-down is deemed to be at 18:00 on 3 February 2021

JUDGMENT

TLHOTLHALEMAJE, J

[1] With this application, the applicant seeks an order reviewing and setting aside the arbitration award issued by the second respondent (Commissioner) dated 3 February 2019. In the award, the Commissioner found that the dismissal of the third respondent (Mr Maziya) on 4 September 2018 by the applicant (Employer) was substantively unfair, and had awarded him maximum compensation. Maziya has opposed this application.

[2] The applicant conducts the business of predominately gold processing. Maziya was employed with effect from August 2005. At the time of his dismissal for misconduct related to 'suspicion of theft of company goods', he occupied the position of Team Leader.

[3] The background to the allegations leading to the dismissal of Maziya is not seriously contested and may be summarised as follows;

3.1 On 20 September 2018, another employee, Mr Williams, was about to exit the business premises at the main gate when he was found in possession of stolen 1.5 kg of gold concentrate worth about R850 000.00. The product came from the applicant's Concentrate Room, which was located in a restricted area.

3.2 Upon being found with the stolen goods, Williams was subsequently apprehended by members of the South African Police Services. When he was released, he was subjected to an internal disciplinary enquiry and dismissed. At the internal enquiry, he had alleged that he was not the only one involved in the theft, as there was a syndicate operating in the premises. He had however refused to disclose the names of the members of the alleged syndicate.

3.3 Williams had prior to his dismissal, not worked in a restricted area where the gold concentrate was found. The applicant took a decision to subject all the employees who worked in that area to a polygraph test, to establish how Williams could have had access to the restricted area and product in question.

3.4 Seven employees who worked or had access to the area, including Maziya were subjected to the test. Maziya was the only one who had 'failed' the test and was subsequently subjected to a disciplinary enquiry, resulting in his dismissal.

3.5 Having referred an alleged unfair dismissal dispute to the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA), the dispute came before the Commissioner for arbitration, where Maziya had testified in his defence, whilst the applicant had called two witnesses, viz Messrs Zolani Kwake and Johannes Gebhardt on its behalf.

3.6 Kwake is the HR Manager and his testimony, other than to confirm the common cause facts as above was that;

3.6.1 The applicant had over time experienced various incidents of theft of gold concentrate, hence the decision to subject the employees who had access to the restricted area to polygraph test.

3.6.2 The applicant had a clean disciplinary record and had access to the restricted area at any time during his shift as a team Leader.

3.6.3 Although there were security officers assigned to the area, it was not known whether they had conducted searches on all he employees every time they were in the area or not

3.7 Gebhardt's testimony was that;

3.7.1 He was the Mine Superintendent and had testified at the internal disciplinary hearing. He was responsible for initiating the polygraph tests on the employees who had access to the restricted area. He was not a party to the testing and had only seen Maziya's test results.

3.7.2 Maziya as Team Leader regularly gained access into the restricted area, in the course of his duties of inter alia supervising and managing his subordinates, and relieving other employees when they took breaks. At any given time, there were two employees per shift working in the area.

3.7.3 Williams and Maziya were allocated the same shift on the day that the former was caught with the stolen goods, even though they were in different sections.

3.7.4 Amongst the other employees who had access to the area were the forklift driver, the supervisor, and the security guard, and other employees who were further responsible for retrieving the gold concentrate from the area to take to what is referred to as 'Illusion Building'.

3.7.5 The restricted area was always locked, and Maziya or any other employee could only gain access through the security guards on duty, who were also tasked with searching employees whenever the exited the area. The security guards however could not be trusted, and it was possible that they were part of the syndicate that operated in the premises.

3.8 Maziya's testimony was essentially that he only accessed the restricted area as and when other employees called him for assistance with their work or equipment. He had however denied any involvement in the theft and conceded that he knew Williams, but only as a co-worker. He further testified that the security guards did not always conduct searches on employees who had accessed the restricted area.

[4] The Commissioner made the following findings and conclusions;

4.1 Since Williams was not working in the restricted area, he could only have had got possession of the gold concentrate through a person who had access in the restricted area. The evidence indicated that Maziya, his team, security guards, forklift driver, and the Shift Supervisor had access to the restricted area.

4.2 There was no direct evidence against Maziya, and the Employer had relied on circumstantial evidence in finding him guilty on a balance of probabilities.

4.3 There was more than one inference to be drawn because Maziya was not the only person who had access to the area, and his dismissal was based on mere speculation and conjecture.

4.4 Even if it were to be accepted that Maziya had failed the polygraph test, there was no evidence led at the proceedings to demonstrate that he was the only one who had failed, as the employer had only submitted his results as evidence, and failed to produce the results of other employees tested.

4.5 To the extent that the reliance in dismissing Maziya was solely placed on the results of the polygraph test, the reliability of the tests remained open to question, and any litigant seeking to rely on them, was required to also adduce expert evidence in regard to their 'conceptual cogency and accuracy' . Since the applicant failed to do so, the dismissal was unfair. Maximum compensation was therefore appropriate in this case, since the dismissal was grossly unfair, and the further since Maziya had long service.

[5] The applicant seeks the review and setting aside of the award on no less than 13 broad grounds including that;

5.1 The Commissioner committed material error of law in his approach to the application of the civil standard of proof by concluding that the evidence permitted more than one inference to be drawn.

5.2 The Commissioner's proposition as above did not describe a recognizable standard of proof, as he was enjoined to determine which inference was the most likely one, and not whether several inferences could be drawn. Thus the Commissioner applied the incorrect standard of proof and failed to properly evaluate the evidence.

5.3 The Commissioner overlooked the evidence of Kwake that the other six employees passed the polygraph test, and that Maziya was not a satisfactory witness as he was dishonest and had also lied.

5.4 The results of the polygraph tests were corroborated by Maziya's dishonest testimony coupled with his desire to part ways with the company and his disingenuous assertion that he was set up.

[6] Each of the grounds of review advanced by or on behalf of the applicant were adequately addressed on behalf of Maziya in the answering affidavit and the heads of argument, and it is not necessary to repeat same other than to state that it was submitted that there was no merit in all of them, including that some of these grounds were raised for the first time in the heads of argument.

[7] The test on review is trite. For the applicant to succeed with this review application, it must be demonstrated that the Commissioner's decision, in the light of the material that was placed before him/her, fell outside the band of reasonableness.

[8] Flowing Head of Department of Education v Mofokeng & others [1], mere errors of fact or law are not be enough to vitiate the award, and that flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, or reliance on irrelevant considerations, or ignoring of material factors, must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner, or arrived at an unreasonable result. The ultimate question to be asked therefore, is whether the Commissioner afforded the parties a fair trial of the issues, considered the principal issues before him, and whether the resultant decision falls outside of a band of decisions to which a reasonable decision-makers could come on the same material[2].

[9] To the extent that it is common cause that the primary evidence that led to the charges being preferred against Maziya is the results of the polygraph test, it is accepted that these tests are considered fair only where there is reason to suspect employees of involvement in wrongdoing [3] In DHL Supply Chain (Pty) Ltd v De Beer NO and Other [4] however, it was held that the mere fact that an employee fails a polygraph test is not in itself sufficient to find that employee guilty of dishonesty, and that the onus remains on the employer to lead expert evidence, and to prove cogency and reliability of the polygraph tests

[10] The facts of this case and the basis upon which the decision to dismiss Maziya do not deserve any different treatment and assessment from those in DHL Supply Chain[5] and the approach of the Labour Appeal Court in that matter. From the award itself, it is apparent that the Commissioner had regard to the fact that the Applicant had solely relied on the results of the polygraph test. No attempt was made to either call an expert in that regard, let alone the person who had conducted the tests.

[11] The results were merely presented to the Commissioner without any elaboration, nor any objective and unbiased opinion as to how they were arrived at. The opinions of Gebhardt and Kwake in regards to the outcome of the tests were on the whole meaningless, as they were not even involved in the conduct of the testing other than to make arrangements in that regard. Thus to the extent that these tests were referred to by the Applicant at the arbitration proceedings without more, I fail to appreciate the basis upon which it can be said that there was more for the Commissioner to consider, other than the mere submission of the results.

[12] The Commissioner's conclusions that more than one inference could be drawn from the circumstantial evidence and the facts of the case because Maziya was not the only employee who had access to the restricted area, cannot give rise to an irregularity vitiating the final outcome. It was not in dispute that Maziya was not the only employee who had access to the restricted area. Furthermore, it did not appear to be in dispute that there were other employees Who had access to the restricted area, but who were not tested. The mere fact that Williams worked in the same shift as Maziya was not on its own sufficient from which any negative inference could be drawn. Worst still, Gebhardt had on behalf of the Applicant, testified that that the security guards responsible for access to the restricted area were not trustworthy and that it was possible that they had conspired with the employees involved in the theft of gold concentrate.

[13] In the light of the above considerations, and further in the absence of any other evidence to the extent that the Applicant relied solely on the results of the tests, it was reasonable for the Commissioner to conclude that from a conspectus of facts, it was permissible to draw more than one inference, since other reasonable inferences that did not inevitably implicate Maziya could not be excluded, in explaining how Williams had gained access to the restricted area and the stolen product.

[14] It was the Applicant's contention that an adverse inference ought to have been drawn against Maziya on account of his alleged dishonest testimony, or because he was an unsatisfactory witness, and/or due to his desire to part ways with the company after the allegations were made against him, and/or alleged disingenuous assertion that he was set up, and/or failure to contest the polygraph test results.

[15] The submissions clearly lack merit on the grounds that in the absence of other corroborating evidence, the mere fact that Maziya had denied knowledge of how Williams got hold of the product or accessed the restricted area, could not strengthen the Applicant's mere suspicions that he was involved. A reading of the 'Finding, Outcome and Recommendation' of the Chairperson of the disciplinary enquiry[6] indicates that the Chairperson placed emphasis and drew inferences from Maziya's bare denial. I fail to appreciate how in those circumstances, it would have been expected of Maziya to add anything to his denials, when he was not presented with any evidence other than the polygraph tests. In the light of the evidentiary burden being on the Applicant, all Maziya could do under the circumstances was to deny guilt or knowledge of how Williams got hold of the product. Furthermore, nothing much could be read into Maziya's wish to part company with the Applicant after the allegations were made against him. An inference of guilt cannot simply be drawn from an employee's wishes to leave service after being accused of dishonesty, which conduct goes to the heart of a trust relationship, and in circumstances where there was no probable or sufficient basis for those allegations.

[16] Too much emphasis was also placed by the applicant on the fact that Williams had allegedly said that there was a syndicate operating in the applicant's premises. I agree that to a large extent, given the nature of its operations, the applicant had to take all the necessary steps to protect its property and interests. At the same time however, given Maziya's guaranteed rights to fair labour practices, it could not have been fair as the Commissioner had found, to simply dismiss him on account of mere suspicions.

[17] Equally without merit is the contention that an award of maximum compensation was not reasonable in the circumstances. Section 194 of the LRA requires that the amount of compensation awarded to an employee whose dismissal was unfair must be just and equitable in all circumstances, but may not be more than the equivalent of 12 month's remuneration calculated at the employee's rate of remuneration on the date of dismissal.

[18] The approach in determining what constitutes just and equitable compensation was reiterated in ARB Electrical Wholesalers (Pty) Ltd v Hibbert[7], and essentially, the factors to be looked at include but are not limited to the nature and seriousness of the infringement, the circumstances in which it took place, the behaviour of the employer and the extent of the complainant's humiliation or distress.

[19] In this case, in considering the amount of compensation, the Commissioner had regard to the fact that the dismissal of Maziya was 'grossly unfair', and further that he had long service. Furthermore, there cannot be anything unfair when maximum compensation is awarded, in circumstances where an employer had hopelessly failed to discharge the onus placed on it under sections 192(2) and 188(1)(a)(i) of the LRA, and where as the Commissioner had found, that the dismissal was grossly unfair. In my view therefore, the Commissioner's conclusions in awarding maximum compensation cannot be faulted in the light of the conclusions reached above in this judgment, and I can find no reason why the compensation award should be interfered with.

[20] In the end, I am satisfied that the Commissioner's award is unassailable, as he had afforded the parties a fair trial of the issues, considered the principal issues before him, and arrived at a decision that falls within a band of decisions to which a reasonable decision-makers could come on the same material.

[21] I have further had regard to the requirements of law and fairness in regards to an award of costs. This review application in the light of established legal principles referred to in this judgment ought not to have been pursued. Maziya was within his rights to defend the award which was in his favour. In the course of doing so, he was burdened with costs which he should not have incurred. In the premises, I see no reason why he should not be entitled to his costs.

[22] Accordingly, the following order is made; Order:

1. The application to review and set aside the arbitration award issued by the Second Respondent under case number GAEK11501-18 dated 3 February 2019 is dismissed with costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. W Hutchinson, instructed by Fluxmans Incorporated

For the Third Respondent: A Goldberg of Goldberg Attorneys

[1] [2015] 1 BLLR 50 (LAC) at paragraphs [30] - [33]

[2] See Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA). See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para [20], where it was held' 'Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate(this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator 's decision one that another decision­ maker could reasonably have arrived at based on the evidence?'

[2] See Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA). See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para [20], where it was held'

'Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate(this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator 's decision one that another decision­ maker could reasonably have arrived at based on the evidence?'

[3] Gemalto South Africa (Pty) Ltd v Ceppwawu obo Lauw and Others (JA 54/14) [2015] ZALAC 36 (27 August 2015)

[4] (DA4/2013) [2014] ZALAC 15; [2014] 9 BLLR 860 (LAC); (2014) 35 ILJ 2379 (LAC), where it was held; "[30] These considerations beg the question about what a failed polygraph test really produces by way of usable information. Only the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities. In this appeal, DHL's consent form, signed by the two respondents , states that the test would indicate that the worker was either involved or not involved in the stock loss. That premise is

questionable, and to belabour the point, required the kind of expert evidence mentioned above to render it worthy of consideration . [31] In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case."

[4] (DA4/2013) [2014] ZALAC 15; [2014] 9 BLLR 860 (LAC); (2014) 35 ILJ 2379 (LAC), where it was held;

"[30] These considerations beg the question about what a failed polygraph test really produces by way of usable information. Only the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities. In this appeal, DHL's consent form, signed by the two respondents , states that the test would indicate that the worker was either involved or not involved in the stock loss. That premise is

questionable, and to belabour the point, required the kind of expert evidence mentioned above to render it worthy of consideration .

[31] In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case."

[5] ibid

[6] Page 39 of the Index to Record of Proceedings

[7] (DA3/13) [2015] ZALAC 34; [2015] 11 BLLR 1081 (LAC); (2015) 36 ILJ 2989 (LAC), where it was held; '[24] The determination of the quantum of compensation is limited to what is "just and equitable". The determination of what is "just and equitable" compensation in terms of the LRA is a difficult horse to ride. There are conflicting decisions regarding whether compensation should be analogous to compensation for a breach of contract or for a delictual claim. In my view, and as I said earlier, because compensation awarded constitutes a solatium for the humiliation that the employee has suffered at the hands of the employer and not strictly a payment for a wrongful dismissal, compensation awarded in unfair dismissal or unfair labour practice matters is more comparable to a delictual award for non-patrimonial loss. While a delictual action (ie action injuriarum) for non-patrimonial loss is fashioned as a claim for damages, it is no more than a claim for a solatium because it is not dependent upon patrimonial loss actually suffered by the claimant. Hence, awards made under a delictual claim for non-patimonial loss may serve as a guide in the assessment of just and equitable compensation under the LRA. In Minister of Justice & Constitutional Development v Tshishonga (Tshishonga), this Court in an award of solatium referred to the delictual claim made under the actio iniuriarum for guidance in what would constitute just and equitable compensation for non-patrimonial loss in the context of an unfair labour practice. It stated that since compensation serves to rectify an attack on one's dignity, the relevant factors in determining the quantum of compensation in these cases included but were not limited to: ' ...the nature and seriousness of the iniuria, the circumstances in which the infringement took place, the behaviour of the defendant (especially whether the motive was honourable or malicious), the extent of the plaintiff's humiliation or distress, the abuse of the relationship between the parties, and the attitude of the defendant after the iniuria had taken place ... '. [25] The above dictum should serve as an appropriate guideline in determining what is just and equitable compensation that can be awarded under s194(3) of the LRA.'(Citations omitted)

[7] (DA3/13) [2015] ZALAC 34; [2015] 11 BLLR 1081 (LAC); (2015) 36 ILJ 2989 (LAC), where it was held;

'[24] The determination of the quantum of compensation is limited to what is "just and equitable". The determination of what is "just and equitable" compensation in terms of the LRA is a difficult horse to ride. There are conflicting decisions regarding whether compensation should be analogous to compensation for a breach of contract or for a delictual claim. In my view, and as I said earlier, because compensation awarded constitutes a solatium for the humiliation that the employee has suffered at the hands of the employer and not strictly a payment for a wrongful dismissal, compensation awarded in unfair dismissal or unfair labour practice matters is more comparable to a delictual award for non-patrimonial loss. While a delictual action (ie action injuriarum) for non-patrimonial loss is fashioned as a claim for damages, it is no more than a claim for a solatium because it is not dependent upon patrimonial loss actually suffered by the claimant. Hence, awards made under a delictual claim for non-patimonial loss may serve as a guide in the assessment of just and equitable compensation under the LRA. In Minister of Justice & Constitutional Development v Tshishonga (Tshishonga), this Court in an award of solatium referred to the delictual claim made under the actio iniuriarum for guidance in what would constitute just and equitable compensation for non-patrimonial loss in the context of an unfair labour practice. It stated that since compensation serves to rectify an attack on one's dignity, the relevant factors in determining the quantum of compensation in these cases included but were not limited to:

' ...the nature and seriousness of the iniuria, the circumstances in which the infringement took place, the behaviour of the defendant (especially whether the motive was honourable or malicious), the extent of the plaintiff's humiliation or distress, the abuse of the relationship between the parties, and the attitude of the defendant after the iniuria had taken place ... '.

[25] The above dictum should serve as an appropriate guideline in determining what is just and equitable compensation that can be awarded under s194(3) of the LRA.'(Citations omitted)