Employment law update – Polygraph test and circumstantial evidence

April 1st, 2021
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Goldplat Recovery Pty Ltd v CCMA and Others (LC) (unreported case no JR488/2019, 3-2-2021) (Tlhotlhalemaje J).

In September 2018 an employee of the applicant was found with 1,5 kg of gold concentrate in his possession. The product was kept in a restricted area, which the employee did not have access to. Having been released on bail and at his internal inquiry, the employee said that a syndicate was operating out of the employer’s premises but refused to identify those involved. The employee was subsequently dismissed.

In light of this information and on the employer’s request, employees who had access to the restricted area underwent a polygraph test. Of those who were polygraphed, only the third respondent employee failed the test. This employee was charged for ‘suspicion of theft of company goods’ and later dismissed, whereafter he referred a dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

At arbitration, the employer led the evidence of its Human Resources (HR) Manager and Mine Superintendent. Their evidence before the arbitrator was:

  • That the employee was a team leader and had access to the restricted area by virtue of his responsibilities.
  • Although there were security guards in the restricted area, it was unclear whether the guards searched employees each time they entered or exited the area. Furthermore, it was possible that the security guards may have been a part of the suspected syndicate.
  • Both witnesses were not involved with administrating the polygraph test.
  • There were other employees who had access to the restricted area.
  • The employee who had been dismissed for possession of the gold concentrate and the employee in casu, worked the same shift the day the former attempted to steal the gold concentrate.

The employee’s version was simply that he was not involved in the attempted theft of the gold concentrate.

In his award the arbitrator found that:

  • Since the employee in whose possession the product was found, did not have access to the restricted area, he could only have obtained possession of the gold concentrate from someone who had access to the restricted area.
  • In the absence of leading any direct evidence in support of the charge, the employee relied solely on circumstantial evidence in an attempt to discharge its onus.
  • Due to the fact that the employee was not the only person who had access to the restricted area, there was more than one inference to be drawn from the circumstantial evidence.
  • The employer failed to lead any expert evidence on the reliability and accuracy of the polygraph test.
  • Following the above findings, the arbitrator found the employee’s dismissal substantively unfair and awarded him 12 months’ compensation.
  • On review, the employer attacked the award on numerous grounds, namely:
  • The employer argued that the arbitrator adopted the incorrect standard of proof when assessing the circumstantial evidence in that the question he ought to have asked is whether the inference drawn by the employer was the most likely one and not whether it was the only inference that could have been drawn.
  • The arbitrator failed to take into account the fact that the employee was dishonest and hence an unsatisfactory witness.
  • The results of the polygraph test corroborated the employee’s dishonesty.
  • It was unreasonable for the arbitrator to award the employee maximum compensation.

The court began by stating that the test on review is trite. An arbitrator’s error in law or fact, their flaws in their reasoning, their reliance on irrelevant facts or failure to place weight on material facts, are on its own, not enough to set aside an award. It is only when it can be demonstrated that these irregularities ultimately led the arbitrator to embark on the incorrect inquiry or resulted in the arbitrator arriving at a finding, which falls outside the band of reasonableness, would the award be susceptible to being set aside.

Turning to the merits, the court found that it was the results of the polygraph test, which formed the basis of the employer preferring charges against the employee, and subsequently dismissing him. While administering a polygraph test is in itself not unfair only where there is reason to suspect wrongdoing, an employer cannot solely rely on the employee failing the test in order to establish dishonesty on their part.

Additionally, the onus remains on the employer to prove the cogency and reliability of the polygraph test. To this end, the employer failed in its duty. Neither the HR Manager, nor the Superintendent were experts in this field or even administrated the test. Thus, other than submissions on the results of the polygraph test, there was nothing further the arbitrator could have considered on this point.

On the common cause facts, together with the employer’s own version, in particular that the security guards at the restricted area were not trustworthy and could have been complicit in the attempted theft; it was not unreasonable for the arbitrator to find there were other reasonable inferences that could be drawn, which did not implicate the employee in any way.

Regarding the second and third ground on review, the employer argued that the arbitrator ought to have drawn the inference that the employee was dishonest and unreliable following that his defence amounted to a bare denial, together with the fact that he did not challenge the results of the polygraph test. In rejecting this argument, the court held that absent any direct evidence of the employee’s involvement in the attempted theft, the employee’s lack of knowledge of such events could not strengthen the employer’s suspicion that he was involved in the incident.

In relation to the maximum compensation awarded to the employee, the court held:

‘The approach in determining what constitutes just and equitable compensation was reiterated in ARB Electrical Wholesalers (Pty) Ltd v Hibbert [[2015] 11 BLLR 1081 (LAC)], 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.

In this case, in considering the amount of compensation, the Commissioner had regard to the fact that the dismissal of [the employee] 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 [Labour Relations Act 66 of 1995], and where as the Commissioner had found, that the dismissal was grossly unfair.’

The review application was dismissed with costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2021 (April) DR 36.

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