PC distributor and manufacturer Mustek has lost out in the labour court, after it sought to have a compensation award set aside. The compensation had been awarded to a staff member who had been fired for theft, based solely on the results of a polygraph test.
The decision, handed down by the Johannesburg labour court, stemmed from the dismissal of a staff member for "misappropriation of company property". The staff member was dismissed based on a polygraph test, but was awarded compensation, which Mustek appealed.
The application aimed to set aside commissioner for conciliation Joseph Tsabadi's award that found the staff member was unfairly dismissed for theft as there was no "fair reason", although the procedural fairness of the dismissal was not in dispute.
"The only evidence adduced against the employee was the results of the polygraph test," says acting judge Seedat. The judge wrote that there is no reason to interfere with the commission's decision through review.
The staff member was employed as a service technician to repair laptops and other electronic equipment. The employee had access to the bulk store where laptops are kept, as well as the manufacturing area, notes the judgement.
Stolen property
Between 25 March 2009 and 30 March 2009, eight laptops went missing from the store, and a further nine from the production area, which were not found during a search, states the decision. A review of video footage did not reveal anything "untoward or suspicious," it adds.
As a result, management decided to polygraph all 67 staff who were in the two areas during that time frame. Of those tested, six failed and were retested, and four - including the dismissed staff member - failed the second round.
All four were dismissed and took their cases to the Commission for Conciliation, Meditation and Arbitration. The staff member referred to in the recent labour court decision handed down was deemed to have been unfairly dismissed.
Mustek appealed the commission's decision and wanted it set aside because the award against it could not be justified. It argued that the commissioner did not properly, justifiably and reasonably consider all the evidence.
The commissioner had found the fact that the staff member failed the test twice was insufficient to fire the employee as other evidence must be used in conjunction with the test. Mustek argued that other evidence was also presented, such as the staff member's access to the areas from where the equipment went missing.
Mustek also pointed out that the staff member was at work on Saturday, which was unusual, although this was at the request of a manager. The distributor also argued that the staff member's skills were in great demand and it was "reasonable to assume that he built up contacts for the repair and building of laptops outside his normal working environment".
However, Seedat said there was no evidence that the employee had such a relationship outside of work, and Mustek did not show how such an association would lead to laptops being stolen.
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