The Labour Court in Johannesburg dismissed the application by BCE Foodservice Equipment (Pty) Ltd to review the decision of the Commission for Conciliation, Mediation and Arbitration (CCMA), which found that the dismissal of an IT technician was substantively unfair.
The court upheld the arbitration award, ordering the company to pay the former employee compensation of R105,900 after he was dismissed for refusing a polygraph examination.
The decision was handed down by Judge Van Vuuren. The employee, referred to as SZ, worked as a support IT technician until his dismissal on February 28, 2022.
Conflict arose after car accident
The dispute began after SZ was involved in a road traffic accident on February 12, 2022. Following this, he asked his employer for leave on February 14 to handle matters related to his vehicle and insurance. His request was denied because the manager advised him to deal with these issues at the office.
SZ did not come to work that day. Later, he visited a doctor, had an X-ray, and received five days' sick leave, presenting a medical certificate to his employer. The company began to suspect the timing of his consultation, as the appointment was scheduled after he was informed that his absence would be unauthorized and unpaid.
The employer contacted the doctor's offices and found out that SZ's appointment took place around 3:15 PM on February 14. According to evidence presented to the CCMA, the company believed this might indicate that SZ obtained sick leave to avoid losing wages. Consequently, the company required him to undergo polygraph testing.
Employee's refusal of polygraph
When SZ returned to work on February 21, he was issued a written warning for being late on February 12 and informed that he must take a polygraph test. He refused. SZ admitted that his employment contract contained a clause allowing the company to require employees to undergo polygraph or drug tests. However, he argued that he saw no legal basis for conducting such a test in this situation.
He also stated in the arbitration that he did not consider polygraph testing scientifically sound. The company's employment contract stipulated that refusal of a polygraph could lead to a negative finding and be considered a failure to comply with a reasonable instruction, potentially leading to disciplinary action, including dismissal. Subsequently, SZ was accused of refusing the polygraph and violating the terms of his employment contract, and was dismissed on February 28, 2022.
CCMA found dismissal unfair
He filed a claim for unfair dismissal with the CCMA. The Commissioner ruled that the dismissal was substantively unfair and ordered BCE Foodservice Equipment to pay him compensation of R105,900. The Commissioner concluded that the company failed to prove that SZ consulted a doctor for an improper reason. The Labour Court agreed with this conclusion, noting that the evidence before the commissioner supported this finding. The court emphasized that SZ was involved in an accident, subsequently consulted a doctor, underwent an X-ray, and was granted five days' sick leave, and that the employer did not dispute the validity of his medical certificate.
'Suspicion' proved insufficient
The Labour Court noted that the employer's suspicions were largely based on the time of his appointment. Nevertheless, the court found that based on the evidence presented, it was impossible to establish what specific misconduct had occurred. It was also unclear how the alleged polygraph examination could aid the employer's investigation, given that SZ had indeed seen a doctor who advised him to take sick leave. The court concluded that the company failed to establish a sufficient basis for applying the polygraph clause in SZ's employment contract. Therefore, SZ's refusal to take the test was not insubordination, as the employer failed to prove that it issued a reasonable instruction. The court also rejected the assumption that the contractual clause was an all-encompassing requirement for SZ to undergo a polygraph whenever the company requested it. It was established that in the circumstances of this case, SZ's visit to the doctor did not jeopardize the employment relationship, and the employer could not establish a proper basis for using the polygraph clause.
The Commission for Conciliation, Mediation and Arbitration (CCMA) deemed the awarded amount reasonable. BCE argued that the commissioner had misinterpreted the investigation and reached a conclusion that no reasonable decision-maker could accept. The Labour Court rejected this argument, finding that the commissioner's reasoning was properly based on the evidence and that he had taken into account the relevant terms of SZ's employment contract. The court stressed that an appeal was not an opportunity for the Labour Court to substitute its own opinion simply because another conclusion might seem more plausible. The question was whether the CCMA's outcome could have been reached by a reasonable decision-maker based on the available evidence. The court ruled that the awarded amount did not meet the threshold for overturning.
Ultimately, the Labour Court dismissed BCE Foodservice Equipment's application for review and setting aside the CCMA's decision. Thus, the company failed in its attempt to refute the finding that SZ's dismissal was substantively unfair, as well as the order for compensation of R105,900. The court did not rule on costs.