Lies And Videotape

Dishonesty in the workplace can irrevocably break down trust relationships. RMI industrial relations specialist David Van Rooyen looks at cases that have led to dismissal.
Dismissal is not an expression of moral outrage or an act of vengeance. It is, or should be, a sensible response to risk management. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of minor theft; it has everything to do with the operational requirements of the employer’s enterprise.” (Extract edited – Labour Appeal Court: De Beers Consolidated Mines and CCMA.)
Despite a clean record
An employee found some scrap metal in the company’s skip, which he thought might fix his stove at home. Unfortunately, he didn’t get permission to take the scrap off the premises. On his way out, he was searched and the scrap was found in his bag. He was charged with theft, called to a disciplinary inquiry and dismissed. At the CCMA, the arbitrator accepted that he was guilty of stealing the metal, but concluded that dismissal was too harsh, taking into account his 25 years of service and clean disciplinary record. The employee was reinstated with benefits, but without back pay.
In the Labour Appeal Court, the company stated that it had a policy of zero tolerance for dishonesty and his theft had destroyed the trust relationship. The employee admitted the theft, but tried to convince the judge that his conduct was not theft in the strict sense of the word. However, the judge would not water down the accepted meaning of theft. With regard to the 25 years service and clean record, the court confirmed that the damage done to the trust relationship by serious misconduct outweighs long service and a clean record. The court concluded that the arbitrator’s decision to reinstate was not reasonable and that the employee’s dismissal for operational reasons was fair – “he undoubtedly breached the relationship of trust built up over many years of honest service. The company had a consistent policy of zero tolerance for theft and that had been clearly conveyed to all the employees. The commissioner’s award was not justifiable in relation to the reasons given for it. The dismissal was justified for operational reasons and fair”.
Caught red-handed
A female employee was caught on camera, on two separate occasions, concealing a blouse and a belt under her clothing. She was charged with gross misconduct in that she had “concealed merchandise without paying for it, which resulted in a loss to the company”. Despite 23 years’ service, in the opinion of management her conduct had destroyed the trust relationship. She was dismissed but challenged her dismissal at the CCMA. She did not deny hiding the items under her clothing, but said that the blouse was a waste garment with no value and she had put it there to absorb her perspiration because her work area was hot. As for the belt, she “felt like putting it there”.
With regard to the blouse, the arbitrator wasn’t satisfied that Anna had acted with dishonest intent and her conduct was more like unauthorised use of company property. In the case of the belt, the company had not proven that the belt was company property. In the opinion of the arbitrator, the employee was not guilty on the first charge, but guilty on the second charge. She was reinstated with a final warning. In the Labour Appeal Court, the judge viewed the DVD footage and concluded that her conduct indicated concealment with dishonest intention. In the opinion of the court, the arbitrator had acted unreasonably and had no rational basis on which to accept her explanation for her conduct – “it has long been held that the employer’s decision to dismiss an employee will be interfered with only if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service is a persuasive factor against dismissal, but is not decisive. There are certain acts of misconduct which are of such a serious nature that no length of service can save an employee from dismissal. The employee committed, on two successive days, acts of gross misconduct involving gross dishonesty, which justified the employer’s conclusion that the trust relationship between it and the employee had broken down irreparably”. (Extract edited – Labour Appeal Court: Woolworths and CCMA.)
Ignorance is no excuse
Rainbow Farms provides free milk, tea, coffee and bread in its canteen and a company rule prohibits taking free milk from the premises without permission. An employee was found with some free milk on leaving the premises and he was charged with unauthorised possession/removal of company property. After an inquiry, he was dismissed. At the CCMA, the arbitrator accepted that there is a company rule, but concluded that the employee was unaware of the rule or that he was doing anything wrong. The Labour Appeal Court did not agree and concluded that it was clear that the employee had breached a well-known rule that had been consistently applied by management. The employee had been dishonest and his conduct had destroyed the trust relationship. The dismissal was substantively and procedurally fair.
1. PAK le Roux, ‘The Labour Appeal Court’s approach to dishonest employees’, Contemporary Labour Law, August 2011, Published by Gavin Brown and Associates.
2. Juta’s Labour Library, Published by Juta and Company.

Truth And Lies

The use of polygraphs is a process fraught with difficulty and the tests may well prove inconclusive, explains industrial relations specialist David Van Rooyen.
A polygraph measures and records bodily activities such as heart rate, blood pressure, breathing rate and skin resistance. It is claimed that any conscious effort by a person to give false information during a polygraph test will cause involuntary and uncontrollable responses in these activities. The test itself involves measuring the person’s responses while answering a series of about eight to
12 questions, which would include three that are specific to the reason for the test. The examiner then interprets the test results. However, while the examiner can form an opinion as to whether or not the person has tried to deceive the polygraph, they cannot say conclusively whether the answers are true or false or if the person is lying.
If tests results are going to be used as evidence against an employee, it is important to know how accurate and reliable they are and whether or not they can be used at arbitration.

Accuracy and reliability

According to the American Medical Association, the American Psychological Association and the National Academy of Science, polygraph tests are unreliable and inappropriate for use in the workplace; they are more art than science with little serious research behind them. In this country, the Health Professionals Council of South Africa has reached a similar conclusion. It is claimed that a polygraph measures the responses generated by emotional stress, but stress may be caused by a number of factors of which lying is only one. It is possible that the questions themselves, such as “did you steal the money?” could make the respondent feel like a suspect and become nervous. The fact that they are being interrogated by a stranger in unfamiliar surroundings could make them nervous. The fear of failing the test could produce adrenaline in the body, leading the examiner to infer that the respondent is trying to deceive the machine. There is evidence to indicate that people from different ethnic groups also exhibit different stress reactions that may affect the test results.
There are three significant variables that can affect the accuracy of a test – the expertise of the examiner; the mental and physical condition of the person sitting the test; and the setting in which the test takes place. Independent studies give polygraphs a relatively high rating for reliability and accuracy, but these studies have also shown that only one in three who fail a test might, in fact, be guilty, which means that two out of three people who are found guilty are actually innocent. Even if the accuracy levels are 80 to 90 per cent, there is still a 10 to 20 per cent chance that an innocent person will fail a test and be found guilty. In addition, techniques which can be used to beat the test are available on the Internet.
The examiner is the single most important unknown in assessing the reliability and accuracy of polygraph tests. A large number of South African examiners have been trained in the United States or Israel, with experience in law enforcement but little experience of human psychology. Many examiners belong to the American Polygraph Association and might also belong either to the Polygraph Association of South Africa or to the SA Professional Polygraph Association. Neither of these South African associations is a statutory body and there is no facility in South Africa to assess or accredit examiners.
Be cautious
Because of the potential for error, our courts and arbitrators treat test results with some suspicion. At arbitration hearings, you will probably have to call the examiner as an expert witness so that they can testify and be cross-examined as to their expertise and test procedures and the arbitrator can examine and assess the reliability and accuracy of the test results. In cases of dismissal, the onus rests on the employer to prove that the dismissal was for a fair reason. A failed polygraph test or a refusal to participate in a test is not proof by itself of an employee’s guilt and is unlikely to convince an arbitrator, so corroborating evidence will be required.
Constitutional issues
Apart from concerns about reliability, accuracy and the expertise of the examiner, there are also constitutional issues with polygraph tests, such as the individual’s right to privacy and the right to be protected from self-incrimination. It is possible for a polygraph test to infringe one or more of these rights, but it is standard practice for examiners to brief the person regarding his or her rights prior to conducting a test, in which case there will presumably be no constitutional infringement.
Useful in investigations
Polygraph tests are more helpful and less controversial when used during an investigation and could provide an opportunity for volunteers to clear their names. Tests could reduce the number of suspects and might encourage the guilty person to confess, which is more reliable and useful as evidence than a failed polygraph test.
A failed test is not proof
Refusal to participate in a test might arouse suspicion but does not prove that a person has something to hide. Likewise, a failed test may well create suspicion, but is not proof that an offence was committed or that the employee is lying. Suspicion is one thing – proving guilt is something else.

Nedlac Representative At BUSA John Botha

Nedlac representative and Chief negotiator at BUSA, John Botha, spoke to Tristan Wiggill about the challenges facing SMME’s in South Africa. Don’t forget to read the full article in the April issue of Automobil.
A podcast of the interview can be heard here: John Botha Interview