In the matter between Food and Allied Workers Union obo Marema and others / South African Breweries (Pty) Ltd, the Commission for Conciliation, Mediation and Arbitration (CCMA) found that refusing to fully cooperate in an internal investigation was a breach of good faith and trust, which are the bedrock of an employment relationship.
Background facts
Between 2020 and 2022, SAB’s Isando Depot suffered repeated robberies, resulting in stock losses of approximately ZAR 14.7 million. Despite upgrading its security features after each incident, the thefts continued, prompting suspicion that certain individuals with insider access were involved or had shared critical information with the perpetrators. In line with its policies, SAB launched an investigation involving all employees and service providers with stock-related access.
To enhance truth verification during the investigation process, SAB introduced a layered voice analysis (LVA) during the investigation interviews. The applicants participated in investigation interviews but refused the LVA, citing self-incrimination concerns. The investigation concluded that based on the circumstantial evidence, and on the balance of probabilities, the applicants either had knowledge of, or were involved in, the robberies.
The applicants were subsequently charged with derivative misconduct.
Disciplinary proceedings
SAB initially commenced the disciplinary proceedings by convening in-person hearings for the presentation of evidence before an externally appointed independent chairperson. However, during the proceedings, the applicants’ conduct significantly delayed the finalisation of the process. To expedite the resolution of the matter, SAB converted the disciplinary proceedings format to be done by way of written submissions.
The applicants were found not guilty of derivative misconduct. However, the chairperson found that they had nevertheless committed misconduct by breaching their duty of good faith towards SAB, due to their failure to comply with SAB’s policy by refusing to fully corporate in the investigation and to submit to the LVA test. In the circumstances, the chairperson concluded that the trust relationship had irretrievably broken down, and recommended their dismissal as the appropriate sanction. The applicants were accordingly dismissed.
Aggrieved by their dismissal, the applicants referred an unfair dismissal dispute to the CCMA, challenging both the substantive and procedural fairness of their dismissals.
The CCMA proceedings
As regards procedural fairness, the Commissioner was called upon to determine the fairness of the converted format of the disciplinary process. After considering Item 4 of the Code of Good Practice: Dismissals and relevant case law, the Commissioner found that the law does not mandate a specific disciplinary procedure but rather requires that employees be given a fair opportunity to present a defence.
Accordingly, the Commissioner found that the procedure undertaken by SAB during the disciplinary process, which consisted of written representations being presented to the chairperson for determination, afforded the applicants the right and opportunity to state their case and therefore, the process was procedurally fair.
On substance, the Commissioner had to decide whether the dismissal of the applicants was fair in circumstances where (i) they refused to undergo a truth verification test, and (ii) they were found guilty and dismissed pursuant to a competent verdict not explicitly contained in the original allegations.
The Commissioner found that, given the ongoing robberies despite enhanced security measures, the applicants bore a responsibility to assist their employer in identifying those responsible. Further, the Commissioner found that the applicants had an obligation to participate fully in the investigation, as stated in SAB’s policies. The Commissioner also considered that the applicants were aware of the material differences between LVA testing (which only relies on an individual’s voice) and polygraph testing (which requires a machine having contact with a body).
After considering the evidence from both parties, the Commissioner found that the applicants had not provided any valid justification for their refusal to undergo the LVA, nor had they demonstrated any exceptional circumstances that would exempt them from the requirement. Consequently, the Commissioner found that the applicants had violated SAB’s policies by failing to fully and honestly cooperate in the investigation, which is an obligation that formed part of their contractual duty to assist the employer in identifying the perpetrators of the robberies. The applicants’ refusal to comply with SAB’s policies also constituted a breach of their duty of good faith. Since the applicants held positions of trust, their failure to assist in the investigation also amounted to a breach of that trust.
Moreover, the Commissioner found that even if the competent verdict had been expressly included in the disciplinary notice, the employees would not have had a viable defence beyond their claim that LVA and polygraph testing were the same.
For these reasons the Commissioner found the employees’ dismissal to be substantively fair.
Key takeaways
The following principles are discernible from this case:
- In efforts to verify facts during an investigation, employers are not precluded from considering and using alternative truth verification methods short of polygraphs. In this regard, it may be prudent for employers to consider inserting a provision in contracts of employment and/ or a relevant policy that obligates employees to submit to LVA or other truth verification methods that are not physically intrusive, during investigations.
- Employers are not precluded from converting a disciplinary process where this is warranted. The converted process must adhere to the requirements of procedural fairness, including that the employees have received a fair opportunity to present their version prior to a decision being made.
- The principle of competent verdicts is still applicable. However, it would be good practice for employers to describe all the forms of misconduct that the facts may possibly support in the notice that sets out the allegations or complaints against an employee. This would promote efficiencies in dispute resolution and mitigate claims that the employee was not afforded a fair opportunity to lead a defence in that regard.
