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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on whether new evidence and new charges can be introduced at the arbitration stage. We also look at three cases: the first deals with dismissals for operational reasons that the Labour Court found to be a sham. The second deals with the admissibility of evidence where the witness is present during the evidence given by other witnesses. The third case deals with polygraph evidence.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
When retrenchment is a sham
An employer was confronted by a number of operational problems. These concerned (a) productivity; (b) absenteeism; (c) theft; (d) cheaper import commodities from the Far East and (e) the volatile Rand-Dollar exchange. The employer addressed a letter to the trade union calling for a consultative meeting to discuss measures aimed at dealing with these problems. At the meeting the employer intimated that if the identified problems were not resolved, the employees might have to be retrenched. The employees identified measures which they said would address the concerns raised if implemented. The employer rejected all the measures suggested by the employees on the basis that such measures would not contribute in the resolution of the identified problems facing the company.
Two weeks later the employer served the union with a notice for consultation for operational requirements. Various consultation meetings were subsequently held. The employer then took a decision to outsource its entire production process and to engage the services of a temporary employment agent to administer all recruitment and employment-related duties and to be its staffing service provider. To achieve that, it retrenched its entire staff and paid them their severance pay. 63 of 70 employees were taken by the staffing service provider as their employer. All of them were utilised by the employer by doing the same work and positions as they had done prior to their retrenchment.
Was this an unfair dismissal?
In National Union of Metalworkers of SA & others v Genlux Lighting (Pty) Ltd the Labour Court found that the retrenchment was not properly and genuinely justified by the employer's operational requirements, and that the decision to retrench was nothing but a sham. The employer was ordered to re-employ the employees on the expiry of their fixed-term contracts.
The lesson for employers is that the role of the Labour Court, in its own words, is “not merely to determine whether the requirements for a proper consultation process have been followed and whether the decision to retrench was commercially justifiable [but] whether the retrenchment is properly and genuinely justified by operational requirements in the sense that it was a reasonable option in the circumstances.”
This again confirms that the Labour Court will closely scrutinize the decision to retrench, to decide whether it was genuinely justified by the operational circumstances facing the employer. The effect of this is that the employer must be prepared to lead the evidence necessary to substantiate this.
Can a representative also be a witness?
At an arbitration hearing, it became known that the employer’s representative would also be called as a witness. An objection was raised at the beginning of the testimony of the employer’s first witness. At that stage the representative enquired from the commissioner whether she was require to leave the proceedings. The commissioner ruled that she was not required to leave and could sit in during the proceedings.
At a later stage after the completion of the evidence of the first witness, the commissioner ruled that the representative was not permitted to give evidence on behalf of the employer for two reasons. The first reason was that she sat in during the proceedings and secondly because she made an opening statement on behalf of the employer.
Taking this decision on review, the employer contended that the commissioner committed a gross irregularity in refusing the representative to testify simply because she made an opening statement and sat through the evidence of the first witness of the employer. The employer further contended that the commissioner did not warn the representative that she could be precluded from testifying on behalf of the employer if she sat through the proceedings.
In C/K Alliance (Pty) Ltd t/a Greenland v Mosala NO & others the Labour Court reviewed and set aside the commissioner's ruling disqualifying the potential witness. The court found that the witness was not disqualified, but that the commissioner should have warned her that her evidence might carry less weight if she was present during the testimony of other witnesses. Further, there was no rule prohibiting a representative who had made an opening statement from giving evidence.
The lessons from this case are:
- As a general rule witnesses are normally required to wait outside until such time when they would have presented their evidence.
- But where for any reason it turns out later that a witness sat in during the testimony of other witnesses that should not disqualify such a person from testifying.
- The probative value which an arbitrator accords to such evidence would depend on the extent to which the witness may have sought to tailor his or her evidence with those who testified before him or her. This would however not apply where the witness who sat in during the testimony of others, testify on a totally different issue to the one that the others may have testified on.
- An arbitrator is obliged to warn a party that they run the risk that the evidence of a witness who remains in the room while other witnesses testify may carry less weight for the simple reason that the witness was present during the testimony of the other witnesses.
This case again highlights the two fundamental hurdles in assessing evidence, namely admissibility and credibility. The fact that a witness is allowed to give evidence (admissibility), does not necessarily mean that the evidence will be believed (credibility).
Refusal to take a polygraph test
Eight watches were stolen from the employer’s fine jewellery department. The person responsible for the department handed over the responsibility of the department during her tea time to the employee who was subsequently dismissed. This employee was in charge of the jewellery department in the period when the watches went missing. In the same period another employee, a sales consultant, came to the jewellery department with a customer to perform a store look-up for a customer on the computer in that department.
At the CCMA arbitration a negative inference was drawn from the fact that the sales consultant was nervous during the arbitration hearing and from the fact that she refused to undergo a polygraph test. The Commissioner did not however draw a negative inference from the fact that the dismissed employee herself had initially refused to go for a polygraph nor from the fact that she had actually failed the polygraph. The matter was referred to the Labour Court on review in Truworths Ltd v Commission for Conciliation, Mediation & Arbitration & others.
The Labour Court considered the value of polygraph tests to establish the guilt of an employee charged with misconduct. After reviewing previous cases, the court said:
‘What appears from the aforegoing is that a polygraph test on its own cannot be used to determine the guilt of an employee. However, a polygraph certainly may be taken into account where other supporting evidence is available provided also that there is clear evidence on the qualifications of the polygraphist and provided that it is clear from the evidence that the test was done according to acceptable and recognizable standards. At the very least, the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities. The mere fact that an employee, however, refuses to undergo a polygraph is not in itself sufficient to substantiate an employee’s guilt.’
We are aware that many employees routinely use polygraph tests to establish guilt. This case is a reminder that polygraph evidence on its own will not be sufficient. At best this evidence can be used to substantiate or corroborate other evidence.
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