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Legal Precedents in South Africa Related to Polygraph

 

Employers are often faced with misconduct such as theft, misappropriation without exactly knowing from where and who is responsible.

Polygraph test results are often utilised and relied upon and admitted into evidence in inter alia: Disciplinary enquiries, CCMA, Bargaining Councils to prove the employee’s involvement in misconduct.

Polygraph tests should only be utilised as an investigative tool to assist Employers in narrowing investigations by identifying possible suspects and collecting information relevant to the investigation.

Further corroborating evidence is needed to charge an Employee of misconduct.

Only when corroborating evidence confirms the Employees’ guilt, may an Employee is dismissed, provided that all other procedures in accordance with Labour Legislation are followed.

Some Relevant legal cases and outcomes:

Harmse v Rainbow Farms (Pty) Ltd is a very important precedent in the South African labour law environment. It is a finding that opens the door for business to utilize the full abilities of polygraph technology within the workplace in a responsible and sensible manner. Commissioner Wilson stated that the company’s action in conducting a voluntary polygraph test was reasonable against the background of a loss of approximately R2 million. The Commissioner further found that the company was justified in exerting some pressure upon employees to undergo a polygraph test. The Commissioner stated that ‘ultimately the employee could still have refused and the company may well have been entitled to draw an inference from such refusal. As such the employee was found to have taken the test voluntarily

 

In Govender and Chetty V Cargo and Container Services, the two applicants were dismissed for stealing or being a party to the theft of, the contents of a container of goods from the premises of the employer. The nature of the employers business is that they collect containers of goods on behalf of clients, and subsequently deliver them to their clients. The employer’s clients arrived to collect a container of goods three weeks after the container has been delivered to the premises of the employer, only to find that the container was empty. The employer argued that, while there was no direct evidence linking the applicants to the theft of the goods, they were guilty because surveillance over weekends was lower than during the week (it has been established that theft took place over the weekend), and the applicants had encouraged a fellow employee to absent himself over the said weekend. The two applicants, together with their colleagues, had undergone polygraph tests, and they were the only employees to fail the polygraph tests. The dismissal was upheld.

 

In Petusa obo VN Schalkwyk v National Trading Company three employees worked in the department where cash sales boxes were kept. The applicant was the supervisor of the other two. After three days of absence, the one employee found that his box had disappeared. The polygraph test was administered to all staff that had access to the boxes and the applicant test showed indications of deception. He denied stealing the box but offered to pay the money back. The commissioner endorsed the view that polygraph should not be used without supporting evidence. In this case, however, there were independent indicators to support an inference of guilt and polygraph test results supported that inference to the extent that the employee’s guilt had been proven on a balance of probabilities. The commissioner held that the dismissal was fair.

 

In the case of Mewusa obo Mbonambi and S Bruce CC an employee was dismissed after being found guilty of stealing money and a cell phone. He was the only one of eleven employees polygraph tested whose answers indicated ‘deception’. The arbitrator affirmed the approach taken by previous tribunals: that the outcome of the polygraph test may be taken into account when there are also other grounds for believing that the employee has been dishonest. In this case, the other ground was that another witness placed the employee at the scene of the theft at the relevant time; and that the arbitrator found the employees evidence to be both inconsistent and dishonest. In these circumstances, the corroborating evidence of the polygraph test was found to be relevant.

On a balance of probabilities, the employee was held responsible for the theft. The commissioner did not analyse the polygraph tests and accepted that the polygraph examiner who testified was an expert in his field. This may have been because the credentials were not challenged nor was the polygraph examiner cross-examined on his background or expertise.

The commissioner concluded: It is commonly accepted that an employer who causes polygraph test to be conducted on employees who have been suspected of lying may not rely entirely on the outcome of such polygraph tests.

The approach of arbitrators and the courts in this country is that the outcome of polygraph tests may be taken into account when there are other grounds for believing that the employee was dishonest.

 

In Truworths Ltd V Commission for Conciliation, Mediation and Arbitration the value of polygraph tests was summarized as follows: A polygraph test on its own cannot be used to determine the guilt of an employee. However, a polygraph certainly may be taken into account where other supporting evidence is available provided also that there is clear evidence on the qualification of the polygraphist and provided that it is clear from the evidence that the test was done according to acceptable and recognized standards.

At the very least, the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence.

 

In SANDRA PALMER V. Verdwaalde Boer Gashmij (2013) the client failed an AVSAPRO test and was dismissed promptly, the court ruled it was an unfair dismissal on the grounds that there was no other evidence but granted the dismissal and only one month pay, also allowing AVSAPRO as evidence just not stand-alone evidence.

 

 

The following Information is provided by the Commission for Conciliation, Mediation and Arbitration (CCMA):

  • Is There Any Law Controlling Use of Polygraph in South Africa

Currently in South Africa there is no legislation at this point to control the use of the test or to protect the employee’s right against the abuse of the test, however Polygraph testing are accepted in our Common Law as corroborating the burden, and therefore add to the quantity of proof, therefore bringing it closer to the actual truth.

 

3.2   Can one be Compelled to Undergo a Polygraph Test

It is against the Constitution of South Africa to compel a person to undergo a polygraph examination unless she or he consents to it. The consent must be in writing.

  • The individual should be informed that—
  • the examinations are voluntary;
  • only questions discussed prior to the examination will be used;
  • he/she has a right to have an interpreter, if necessary;
  • should he/she prefer, another person may be present during the examination,
  • provided that person does not interfere in any way with the proceedings;

 

3.3   What is a Polygraph Test?

It is a test used to verify a person’s truthfulness and is often called a ‘Lie Detector Test.’

 

3.4   Is There any Law Controlling Use of Polygraph in South Africa

Polygraph testing is a fairly new concept in South Africa, especially in disputes relating to employment relationships. There is no legislation at this point to control the use of the test or to protect the employee’s right against the abuse of the test.

 

3.5   Can one Be Compelled to Undergo a Polygraph Test

  • It is against the Constitution of South Africa to compel a person to undergo a polygraph examination unless she or he consents to it. The consent must be in writing.

The individual should be informed that:

  • the examinations are voluntary;
  • only questions discussed prior to the examination will be used;
  • he/she has a right to have an interpreter, if necessary;
  • should he/she prefer, another person may be present during the examination, provided that person does not interfere in any way with the proceedings;
  • no abuse in whatever way will be allowed;
  • no discrimination will be allowed;
  • no threats will be allowed

 

3.6   When is the Employer Permitted to use a Polygraph?

Generally, employers are permitted to use the polygraph to investigate specific incidents where:

  • Employees had access to the property which is the subject of the investigation;
  • There is a reasonable suspicion that the employee was involved in the incident;
  • There has been economic loss or injury to the employer’s business like theft of company property;
  • The employer is combating dishonesty in positions of trust;
  • The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;
  • The employer is combating deliberate falsification of documents and lies regarding the true identity of the people involved.

 

3.7   Who gets the Polygraph test Results

Polygraph results cannot be released to any person but to an authorised person. Generally, it is the person who has undergone the polygraph test (examinee), or anyone specifically designated in writing by the examinee, firm, corporation or government agency that requested the examination.

 

3.8   What is the Status of Polygraph Test at CCMA

Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the commissioner is to determine the admissibility and reliability of the evidence. Polygraph test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct.

In other words, polygraph test results, on their own, are not a basis for a finding of guilt.

It can be used only in support of other evidence.

We strongly advise employers to make use of experts in Labour Law to assist them in the disciplinary procedure especially before Polygraph Tests are conducted on employee