DHL Supply Chain (Pty) Ltd v NBCRFI (DA4/2013) [2014] ZALAC 15; [2014] 9 BLLR 860; (2014) 35 ILJ 2379 (LAC) (13 May 2014) per Sutherland AJA [Ndlovu JA and Molemela AJA concurring]

Appeal disallowed with costs. LAC Summary: review of arbitration award – employees dismissed for alleged theft after failing polygraph test – polygraph tests not conclusive nor corroborative to establish responsibility in the absence of expert evidence to establish cogency of such evidence – previous judicial decisions allowing or weighing polygraph evidence does not mean expert evidence can be dispensed with in a subsequent given case –  polygraph evidence is not an ‘approved species of evidence’  and must in every case be the subject of expert evidence to establish its conceptual cogency and accurate application – Arbitrator’s decision reasonable in holding the dismissal unfair – Labour Court judgment affirming that decision upheld –  no case of misconduct made out at all – retrospective reinstatement rather than compensation appropriate.

Introduction

[1] The appellant (DHL) employed the third and fourth respondents as workers on a crew handling cigarettes in a dispatching warehouse.  Stock losses occurred on five successive days in June 2008.  The two respondents were dismissed for being implicated in the theft of this stock of cigarettes.  They referred an unfair dismissal dispute to the Road Freight Bargaining Council.  An arbitrator, the first respondent, reversed the dismissal on the grounds that guilt was unproven.  DHL was aggrieved and sought to review that decision.  The Labour court in reviewing the decision, upheld the arbitrator’s award that no misconduct was proven and ordered that the two men be retrospectively reinstated.  DHL now appeals against that judgment.

[2] The two issues in the case are, first whether guilt was proven and, even if not, was reinstatement appropriate rather than a compensation order.  The test on review to evaluate these aspects of the matter is whether the arbitrator’s decision was one to which a reasonable arbitrator, upon the body of evidence adduced, could not come.  (Sidumo and Another v Rustenburg Platinum Mines and Others (2007) 28 ILJ 2405)