The Labour Court in Johannesburg has dismissed an application by BCE Foodservice Equipment (Pty) Ltd to overturn a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that found the dismissal of an IT technician to be substantively unfair. The court upheld an arbitration award ordering the company to pay the former employee R105,900 in compensation after he was dismissed for refusing to undergo a polygraph examination.
The dispute arose after SZ, the IT technician, was involved in a motor vehicle accident on February 12, 2022. He subsequently asked his employer for leave on February 14 to deal with matters relating to his vehicle and insurance, but his request was declined. SZ did not report for work that day and later visited a doctor, underwent X-rays, and was booked off for five days. The company became suspicious about the timing of his medical consultation and required him to undergo a polygraph examination.
SZ refused to undergo the polygraph test, citing that he did not believe there was a valid reason for subjecting him to a polygraph in the circumstances. He also expressed concerns about the scientific validity of polygraph testing. The company's employment contract stated that refusing a polygraph could result in disciplinary action, including dismissal. SZ was subsequently charged with refusing to undergo the polygraph and with repudiating his employment contract and was dismissed on February 28, 2022.
The CCMA found that the dismissal was substantively unfair and ordered BCE Foodservice Equipment to pay SZ R105,900 in compensation. The commissioner found that the company had not established that SZ had gone to the doctor for an improper reason. The Labour Court agreed that the evidence before the commissioner supported that conclusion, noting that SZ had been involved in an accident, had subsequently consulted a doctor, and had undergone X-rays and been booked off for five days.
The Labour Court said the employer's suspicions were based largely on the timing of SZ's medical appointment, but found that it was not possible to establish what misconduct had actually been committed. The court also found that it was unclear how the proposed polygraph examination would have assisted the employer's investigation, given that SZ had in fact visited the doctor and the doctor had determined that he should be booked off work.
The court concluded that the company had not established a sufficient basis to invoke the polygraph provision in SZ's employment contract. As a result, SZ's refusal to undergo the test did not amount to insubordination because the employer had not established that it had issued a reasonable instruction. The court also rejected the suggestion that the contractual provision amounted to a blanket requirement that SZ submit to a polygraph whenever the company demanded one.
The Labour Court ultimately dismissed BCE Foodservice Equipment's application to review and set aside the CCMA award. The company was therefore unsuccessful in its bid to overturn the finding that SZ's dismissal was substantively unfair and the R105,900 compensation order. The court made no order as to costs.
Key points
- The Labour Court upheld a R105,900 compensation award to an IT technician who was dismissed for refusing a polygraph test after visiting a doctor following a car accident.
- The court found that the employer had not established a sufficient basis to invoke the polygraph provision in the employee's contract.
- The court concluded that the employee's refusal to undergo the polygraph test did not amount to insubordination.
