It has been widely accepted by the Labour Court and the CCMA in cases such as Sosibo & others and CTM (2001) 10 CCMA 2.5.2, that, polygraph testing in the workplace is highly contentious and the admissibility of its results remains debateable. 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 Polygrapher on the questions to be asked. The questions 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 have 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 who requested the examination.
Although an employee has a duty to act in good faith, it is accepted by the CCMA and the Labour Court that this duty cannot be 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 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.