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A worker at an engineering firm got more than he had bargained for when he reported his boss for “peeking over the wall” of a toilet stall while he was relieving himself.
As a result, he got fired after reporting his boss and failing to take a polygraph test.
The boss took the test and “no deception was detected”. The worker, who had agreed to the test but never pitched up, was subsequently fired following a disciplinary hearing.
This was after the chairperson of the disciplinary hearing, who also represented the engineering firm, concluded that the polygraph tests proved the innocence of the boss.
The worker took to arbitration the decision to fire him, and it was found that his dismissal was unfair.
The arbitrator awarded him compensation of eight months’ salary amounting to R62 592. This was after the worker had agreed that it would be of no use ordering his reinstatement, as his relationship with his now former boss had broken down.
The company, aggrieved with this outcome, turned to the Labor Court to have the arbitration award turned down. It argued that the polygraph tests showed the worker had lied about the conduct of his boss.
In turning down the application, the court said the contention that the boss “was found to be truthful” in his denial that he peeked over the toilet wall, was a step too far, particularly in the absence of expert evidence.
The respectability of polygraph evidence, at best, remained an open question. Any litigant seeking to invoke it for any legitimate purpose, must adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case, the court said.
The events were sparked by the incident on October 31, 2019, when the worker was using a stall in the bathroom at work. His version is that the owner of the company peeked over the stall wall and looked at him while he was relieving himself.
Being upset by the incident, he went to look for his boss and saw him leaving the bathroom. The worker approached a shop steward before approaching his union externally. His union, in turn, addressed an email to the boss that evening, calling for an apology concerning the incident.
When an apology was not forthcoming, a formal grievance was lodged against the boss. The outcome of the grievance, at that juncture, was that both parties submit to polygraph testing.
The boss did undergo the test, but the worker did not pitch as his union representative was unable to go with him.
The owner of the business, vehemently disputed the allegations during the arbitration. He admitted having entered the bathroom at the same time as another employee. He explained that having used the urinal after he noticed the stalls were occupied. He said he left the bathroom slightly ahead of the other worker.
The boss also testified that the walls of the stalls were so high that it was impossible to look over even while standing on the toilet.
He also testified that while he had not done this exercise himself, other employees had done so and told him that this wasn’t possible.
The company relied heavily on clock-in reports to demonstrate that the boss and the worker were in the bathroom for around the same amount of time and left at about the same time.
The worker said he saw his boss in the toilet, but did not notice what the latter was doing.
The aggrieved worker meanwhile faced a disciplinary hearing on two charges, gross misconduct for “making a false statement” and for not attending the polygraph tests, which he undertook to take.
Following the disciplinary hearing, he was dismissed that same day.
The judge questioned how the chairman of the hearing could have been impartial if he also represented the company at the hearing.
The court said it found this “most peculiar”as there was clearly a conflict of interest.
While the worker pleaded guilty to not attending the polygraph test, the court said he did give an explanation and being fired for this was clearly too harsh.
While it is unknown whose version is right or wrong, the court said the worker’s version is more probable as he took efforts to raise what he was aggrieved about. It was said that the worker wouldn’t have gone to these lengths if his boss did not peek over the wall.
The court also noted that the worker was “deeply hurt” by the incident because before this, he and his boss were on good terms.
The application by the company to overturn the finding that the dismissal was fair, was turned down.
Source IOL
