CCMA / LEGAL

Polygraph testing and the CCMA

Employers are permitted to use polygraph testing 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, e.g. 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 behavior within the company

The employer is combating deliberate falsification of documents and lies regarding the true identity of the people involved.

Polygraph Testing has been widely accepted by the labor Court and the CCMA. 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 the balance of probabilities is used.

Polygraph evidence can be used in labor related cases

It is a commonly known fact that there are disputes to whether polygraph evidence can be used in labor-related cases or not. The evidence of polygraph tests is admissible at the CCMA if it is correctly presented and all procedures are followed. Please refer to the case study presented below as one example of how employers can protect themselves from deceptive employees by utilizing polygraph test results.

Harmse vs Rainbow Farms (Pty) Ltd.

In this matter, the employee, Mr. Harmse, was one of fifteen employees who had access or potential access to equipment that went missing.

At first, when Mr. Harmse was offered the opportunity to prove his innocence by taking a polygraph examination, Mr. Harmse declined to submit himself for the test, but then changed his mind and submitted himself for the test. He was the only person to be found deceptive as a result of the polygraph test.

When offered another polygraph test which could have led to his total exclusion from the investigation, he declined the opportunity. He was then dismissed for reasons of breach of trust. The employer has therefore not dismissed Mr. Harmse on the basis of theft but on the count of breach of the trust relationship between employer and employee.

The decision of the employer was upheld by the CCMA.

Furthermore, it was noted that:

The employer has the right to dismiss an employee whom it can no longer trust provided there are reasonable grounds for such loss of trust based on the actions of the employee.

The employer had reason to request a polygraph examination as a result of suffering a substantial financial loss.
An employer has a right in circumstances of such loss to exert some pressure on employees to cooperate in the investigation of the misconduct or crime.
Granting of the option of a re-examination may be seen as a show of good faith by the employer.
The polygraph examination phase was seen as an integral and crucial part of the investigation.
The advance notification in writing of the examinees of the intention of the employer to institute a polygraph examination as part of the investigation was seen to be fair.
The procedure was not viewed as an unfair labor practice nor as an infringement of the fundamental rights of the examinee.
The CCMA says on its own website as well as that of the SA Labour Law guide website, that polygraph may be used in the workplace. There are many successful cases in the CCMA as well as Labour Court, High, and Criminal Court.

Polygraph has also been accepted as THE ONLY EVIDENCE in a case to dismiss staff for theft- where the result proved 2 things: the balance of probabilities and the breach of trust.

Be legal-wise

Legal issues often rear their head when we talk polygraph examinations, therefore the following needs to be taken into account:

Polygraph evidence on its own is not enough to dismiss an employee, but it can be used as corroborating or supporting evidence and can be presented as part of aggravating factors.
Polygraph examinations can only be done on a voluntary basis, with written consent – no exceptions.
A confession or admission could be made during the course by the examinee to the forensic polygraph examiner, which will be recorded and passed on to the employer who in turn, can use this confession/admission at a disciplinary or arbitration hearing.
The polygraph examination will provide intelligence and/or corroborating or supporting evidence as well as investigative information. The examination will not provide absolute proof of innocence or guilt.
It is illegal to test an examinee with regards to religious beliefs, sexual orientation or behavior, trade union affiliation, etc. Only fair and reasonable issued may be tested.
Should polygraph evidence be required to be used, the polygraph examiner MUST testify. This can be either done in person or via Skype as the examinee has to be able to cross-examine the witness.
Should the matter proceed to arbitration, Rule 37A of the CCMA rules needs to be followed: Notice needs to be given to both the CCMA and employee, seven days prior to the set-down date, informing them that an expert witness will testify.
Employees who refuse to partake in a polygraph examination, cannot be dismissed on that fact alone. What needs to be noted is, was the refusal unreasonable, in breach of the contract and what were the precise facts and circumstances.

There are two different charges that can be recommended here:

Charge 1: Breach of the trust relationship between the employee and the employer

There is a substantial amount of evidence implicating the employee as responsible for the theft or involvement of the theft of stock from his employer during an internal investigation.

Reasons for the ruling of a breach in trust can be stipulated:
– The employee was the responsible person for safeguarding the stock.
– The employee was the only person with a key to the area from where the goods were stolen from.
– No forced entry to this area was found during the investigation
– The employee failed his polygraph test. (supporting evidence)
– Due to all the above circumstances, the trust relationship between the employer and employee was breached.

Charge 2: Breach of contract

In that, the employee failed his polygraph test whereas his contract clearly states that it is a fundamental requirement that the employee should submit himself for a polygraph test if and when requested to do so, that the employee is expected to show zero deception in all such tests. Failure to show zero deception in such tests at all times may result in dismissal.

Reasons for this ruling can be submitted as follow:

– The employee voluntary signed that he will comply with the fundamental requirements in his employment contract which include that he will at all times show zero deception in his polygraph tests if and when he is requested to submit himself for such a test.
– The employee failed to comply with the fundamental requirements in his employment contract by showing signs of deception in his polygraph test.
– Due to failure to comply with this fundamental requirement the employee is dismissed.