Employers are often faced with misconduct or criminal activities such as misappropriation of property or theft in its work environment, without knowing exactly where, how and by whom it is committed. It is crippling the business and the employer is at its wits-end how to find the culprits! To make things worse, you suspect that there are accomplices amongst your employees, sharing in the illegal proceeds and helping to hide the crime!
What to do? Can you send all your employees for a polygraph test?
This is what happened in the case of Amalgamated Pharmaceuticals Ltd v Grobler NO and others[2] where the third, fourth and fifth respondents were dismissed for misappropriation of company property. A polygraph test showed that they could be responsible for the serious stock losses suffered by the applicant. The Labour Court agreed with the reasoning of the Commissioner who found that, in practice, a polygraph does not serve to prove that someone is actually lying, for the questions are often too broad to exclude that which is neither intended nor sought. And it most definitely does not prove that someone is guilty. It is merely an indication of deception.
It has been widely accepted by the Labour Court and the CCMA in cases such as Sosibo & others and[3] that, polygraph testing in the workplace is highly contentious and the admissibility of its results remains moot. The sole reliance by the employer on unspecific polygraph results is insufficient to discharge the onus in terms of section 192 of the Labour Relations Act 66 of 1995 to prove that the dismissal was fair. To discharge this onus, the test of a balance of probabilities is used. To only present polygraph evidence is not enough to show that the dismissal was fair because there is no corroborating evidence.
Does that mean that an employer cannot use polygraph testing?
No, it does not, however there are some strict rules relating to polygraph tests that need to be adhered to, unless the employer wants the test to be found unreliable, unfairly applied and useless in the CCMA or the Labour Court!
Firstly, the employer cannot force any employee to submit to such a test. Refusal to do so does not indicate guilt and is also not necessarily grounds for dismissal. Preferably, the employer should obtain written consent.
Secondly, the employer should agree with the Polygraphists on the questions to be asked. It should not be vague, otherwise the employer will sit with answers that do not take his case any further.
Consent means informed consent. For that purpose the employee should be informed that the examinations are voluntary, the reasons for and type of questions should be explained, it should be explained that he/she has a right to have an interpreter and should he/she prefer, another person may be present during the examination, provided that person does not interfere in any way with the proceedings.
Generally, employers are permitted to use the polygraph test to investigate specific incidents where employees had access to the property which is the subject of the investigation and there is reasonable suspicion that the employee was involved in the incident.
The employer must also been subjected to economic loss or injury to the employer’s business like theft of company property or the employer is involved in situations such as combating dishonesty in positions of trust, or combating serious alcohol, illegal drugs or narcotics abuse or fraudulent behaviour within the company or deliberate falsification of documents and lies regarding the true identity of the people involved.
Polygraph results cannot be released to any person but only to an authorised person. Generally it is the person specifically designated in writing by the employer whom requested the examination.
Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. Therefore the Polygraphists should be called to testify as an expert witness. He must testify how the test was performed, his qualifications, the type of test used and the questions asked and if necessary, a medical doctor should also testify on the issue of manipulating body functions to mislead the Polygraphists, if that becomes an issue at the hearing.
The remaining question is whether their refusal could be said to have been a breach of their duty of good faith. Although an employee has a duty to act in good faith, it is accepted by the CCMA and the Labour Court that it does not follow that this duty extended to an obligation to undergo polygraph tests. It might be that the employee can be expected not to hamper the investigation, but a refusal in itself should not be seen as an act of hampering the investigation. It should be remembered that in our law, the employer must prove the guilt of the employee and the employee must not prove his innocence through polygraph testing.
Polygraph testing is highly contentious and the admissibility of its results is often in dispute. If they are to be accepted as relevant, such tests must at the very least be supported by corroborative evidence[4].
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