Judge sticks up for workers after lie-detector threat from employer

2010-05-05 14:26

Subjecting employees to a lie-detector test is no substitute for a

disciplinary hearing, the labour court has found.

In a ruling handed down in Cape Town this week, Judge Annali Basson

said: “At best, the polygraph test can prove that a person lied, not that he is

necessarily guilty of a crime or misconduct.”

In the ruling, she awarded compensation of a year’s salary to 32

employees of Blue Ribbon Bakeries in Cape Town who were retrenched after a

violent strike in 2007.

The company said it was unable to hold disciplinary hearings

against the 32 who it believed were involved in the violence because witnesses

were too scared to testify.

Instead, it retrenched the workers after offering them a chance to

take lie-detector tests.

Basson said in her ruling that Blue Ribbon, a Premier Foods

company, had wanted to use the polygraph to find out which of the 32 were

involved in strike violence.

Those who passed the test might then be excluded from the

retrenchment list.

Their union, the Food and Allied Workers’ Union, rejected the

proposal for tests, saying it was not a fair or objective way of selecting

employees for retrenchment.

Basson said that after hearing expert testimony, she was not

persuaded that the polygraph was a reasonable or fair way of minimising the

planned retrenchments.

She said: “In the context of a disciplinary process the polygraph

can be a useful tool in the investigation process, but can never substitute the

need for a disciplinary hearing.”

Basson also said the mere fact that an employer could not prove a

charge did not allow him or her to follow the retrenchment route.

“It is simply not acceptable for an employer to decide that,

because I cannot prove the allegations in a disciplinary hearing, I am

proceeding to dismiss by using a process where it is not necessary to prove the

guilt of the accused employee.

“Put differently, an employer cannot as a matter of principle or as

a matter of expedience resort to section 189 retrenchment procedures in

misconduct cases,” she said.

Basson said the strike had been marred by “the most atrocious acts

of violence” on non-strikers.

She said non-strikers’ homes were firebombed, their cars and

possessions were set alight and one female employee was dragged from her home at

night and assaulted with pangas and sjamboks.

The neighbour of one non-striker, who identified attackers, was

later shot and killed near his home.

Basson said: “The individuals who perpetrated these acts clearly

had no respect for human life, the property of others or the rule of law.

“What makes the matter worse is the fact that it appears from the

evidence that the police and the criminal justice system have dismally failed

these defenceless non-strikers.

“Although criminal charges were laid against certain individuals,

nothing happened to these charges.”


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