By Talita Laubscher

Practitioners should note that the Employment Equity Amendment Bill (B31 of 2012) has been published for comment. Among the suggested amendments to the Employment Equity Act 55 of 1998 are changes to s 6, which includes an express provision for equal pay for work of equal value; amendments to s 11, clarifying the burden of proof in unfair discrimination cases; and changes to ch 3, which deals with affirmative action and employment equity plans. The prescribed maximum fines are proposed to increase by 300%, bearing in mind that these fines have not been adjusted since the inception of the Employment Equity Act. It is proposed that the contravention of any of the following four sections will attract a fine linked to the employer’s turnover, namely s 20 (preparation and implementation of an employment equity plan), s 21 (preparation and submission of reports), s 23 (successive employment equity plans) or s 44 (refusal or failure to comply with a recommendation by the director-general of the Department of Labour).

Promotion and polygraphs

In Sedibeng District Municipality v South African Local Government Bargaining Council and Others [2012] 9 BLLR 923 (LC) two employees, Moleko and Mokoena, contended that they had been subjected to an unfair labour practice when they were not promoted to the posts of licence service centre manager and supervisor: DLTC respectively. They had been acting in these respective capacities. The posts were advertised in July 2006 and appointments were made with effect from 1 October 2007.

The employees and six others were shortlisted and interviewed for four available positions. In terms of the scores achieved, Moleko was ranked second and Mokoena fourth. Between March and June 2007 all the shortlisted candidates underwent competency and polygraph tests, to which they had consented in writing. Of the shortlisted candidates, only Moleko and Mokoena failed the polygraph test. It appeared during arbitration proceedings that their failure to pass the polygraph test was the only reason they were not appointed to the respective positions. In this regard, the respondent’s licensing manager testified that the polygraph test was meant to indicate the employee’s honesty and integrity. He also said that if it were not for the polygraph test, the four top ranked candidates would have been appointed.

The arbitrator held that Moleko and Mokoena were better candidates than those who were appointed and, save for one other candidate, they had better qualifications. The arbitrator also found that it was not stated as a requirement in the advertisement that the candidates would undergo polygraph tests; hence it was unfair to introduce the test as a determinative criterion. The arbitrator accordingly found in the employees’ favour and ordered the municipality to pay them the salary and benefits they would have received had they been appointed to the respective positions with effect from 1 October 2007. In addition, he awarded them a year’s salary at the lowest scale of a licence service centre manager.

The municipality took the award on review to the Labour Court. It contended, inter alia, that the arbitrator had misdirected himself in finding that it was unfair of the municipality to introduce polygraphs as a criterion when it was not one of the prerequisites set out in the advertisement. It argued that it was not obliged to spell out in the advertisement every factor that might be taken into account in the selection process. The court, per Lagrange J, agreed that not every consideration that is taken into account needs to appear in the advertisement, but that it is certainly preferable to mention an important factor that might completely disqualify a candidate.

However, the court held that whether or not the criterion was set out in the advertisement was not the crux of the matter; rather, the real issue in dispute was whether, or to what extent, the municipality was entitled to rely on the results of the polygraph test in deciding who should be appointed. In this regard, the municipality argued that the outcome of the polygraph test was a necessary, but not sufficient, condition for appointment and was but one of a number of factors that were considered. The court held, however, that this was not borne out by the licensing manager’s evidence, namely that were it not for the outcome of the polygraph test, Moleko and Mokoena would have been recommended for appointment. The court held that there was nothing irregular or irrational about the arbitrator’s findings in this regard and his findings were based on and supported by the evidence before him.

As regards the relief ordered by the arbitrator, the court held that the relief was ‘extraordinary’, and that there was no reason for the two-pronged relief granted. The court stated that it was ‘difficult to see how any reasonable arbitrator could order relief of such a magnitude in the circumstances’, and the arbitrator’s decision on relief was accordingly set aside. In substituting the relief, the court revisited recent cases on polygraphs. It held that even if polygraph testing (in order to ensure that appointees to senior positions have the required ‘integrity’) may constitute relevant material in determining a person’s integrity, the question remains whether it is fair to rely solely on the outcome of such a polygraph test as a ‘touchstone of integrity’ in the recruitment context. It is well-established in dismissal cases that the results of polygraphs are not, on their own, sufficient; some other evidence of wrongdoing is required.

The court noted that in this case there was no other independent evidence that the two employees were previously implicated in wrongdoing or corruption. In the court’s view, there was no reason to deviate from the principle set out in dismissal cases that one should not rely solely on the results of polygraph tests. In the circumstances, the court held that the exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their ‘deceitful character’, in the absence of any other information placing a question mark over their integrity, was unfair.

The municipality was thus ordered to pay the employees the difference in the remuneration they received from 1 October 2007 and the remuneration they would have received had they been promoted to the posts from that date at the lowest pay scale for the posts concerned.

The court also ordered each party to bear its own costs.

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.

This article was first published in De Rebus in 2012 (Dec) DR 51.