Polygraph Testing

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

What is a Polygraph Test?

A polygraph test (lie detector test) is a test commonly and frequently used by employers to determine the truthfulness and reliability of their employees.

When may Polygraph tests be conducted?

There are unfortunately no regulations that control the use or abuse of polygraph testing. The Constitution of South Africa however protects a person by means of Section 14 and Section 23 of the Bill of Rights. An employee has the right to privacy (Section 14) and the right to fair labour practice (section 23).

An employee may not be forced or compelled to undergo a polygraph test unless he/she has given his/her consent freely and in writing. Consent may be given by way of a collective agreement with the Employee’s union or the Employee’s contract of employment or internal disciplinary code of the Employer which the Employee agreed to abide by on commencement of his/her services as part of their conditions of employment and contract of employment.

According to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) any agreement which provides for an individual needing to undergo polygraph testing must be in writing. Furthermore, the CCMA states that all Employees need to be informed of the following should a Polygraph Test be conducted:

1. The Polygraph Test is voluntary, and the Employee has consented to be tested as per agreements mentioned above in writing
2. only questions discussed prior to the examination will be used
3. the Employee has a right to have an interpreter, if necessary
4. should the Employee prefer, another Employee or Representative may be present during the examination, provided that the Employee or Representative does not interfere in any way with the Polygraph Test proceedings
5. no abuse of Polygraph Testing in whatever manner will be allowed
6. no discrimination will be allowed
7. no threats will be allowed.

An Employer may act within its authority to conduct polygraph testing on the following grounds:

1. the employee(s) have had access to the property which is the subject of the investigation
2. there is a reasonable suspicion of the employee’s involvement in the incident
3. there has been economic loss or damage to the employer’s business
4. the employer is taking action to reduce or prevent dishonesty for those in positions of trust
5. the employer is taking action to reduce or prevent the abuse of alcohol, intoxicating substances and fraudulent behaviour within the company; or
6. the employer is combating deliberate falsification of documents and lies regarding the identity of the people involved.

Dismissal of an Employee as a result of a refusal to undergo a polygraph test

An Employer may proceed with fair disciplinary action if an employee refuses to undergo a scheduled polygraph test which he/she agreed to upon commencement of his/her services. It can therefore be argued that the employee was in direct breach of contract and his/her services can be terminated accordingly.

In a recent Labour Court judgment in Bidvest Protea Coin v Mbongeni Ernest Ngcobo (Case number 260/17), an employee signed a contract of employment where he gave his consent in writing to his Employer to conduct random polygraph testing at the discretion of the Employer. The employee was selected randomly for such a test, but refused to complete the consent form of the service provider despite being given an opportunity to consult his attorney. As a result, he was charged in a disciplinary hearing with breaching his employment contract and subsequently dismissed.

The Labour Court Judge ruled that the dismissal was fair, and the initial arbitration award was set aside.

In a similar case in Crossroads Distribution (PTY) Ltd v National Bargaining Council for The Road Freight and Logistics Industry & Other (Case Number JR 1335/14), two employees were dismissed for refusing to undergo polygraph testing after their express consent was obtained by means of an addendum. The Labour Court Judge ruled in favour of the Applicant in that the dismissals were procedurally and substantively fair.

Note, in a recent CCMA case a Professor at the University of Cape Town by the name of Colin Tredoux, testified that polygraphs are psychological tests and that they are scientifically unreliable. Companies should practice caution when making use of polygraph testing and they should only be used as evidence to further strengthen a case rather than it being the only proof of evidence provided. While polygraphs are admissible they do not carry enough weight on their own.