“A lie is just a great story that somebody ruined with the truth” – Anon
All too often employees find themselves in situations where they are suspected by their employers of having committed some sort of misconduct. The labour law in South Africa places the burden of proof, which is to prove that such employee was guilty of misconduct, on the employer. When an employee is suspected of having been involved with a misconduct, some employer’s elect to utilise polygraph testing, as a mechanism to detect if the employee’s responses to various questions, pertaining to the misconduct, indicates deception. The employer’s apparent intention of such, is to get to the root cause of the transgression, in determining the employee’s guilt and collecting the sufficient ‘burden of proof’ required, to charge the employee/s suspected of the misconduct, for instance conduct relating to either fraud, dishonesty or theft.
The Arbitrator in Mncube and Cash Paymaster Services (1997) 5 BLLR 639 1 (CCMA) defined a polygraph test as ‘several instruments which combine to simultaneously record changes in blood pressure, pulse, and respiration. Apparatus worn by the subject includes a pneumograph tube around the chest, an ordinary blood-pressure cuff, and electrodes on the fingers and surfaces of the hand. The actual physiological changes are transmitted into synchronized readings on graph paper; these parallel graphs are then correlated and interpreted to determine whether the subject is lying.’
Based on the abovementioned definition, it is solely to detect deception. However, the question always arises as to whether the employer can use a polygraph test result that indicates deception to dismiss an employee, without submitting any other substantial evidence to prove the alleged misconduct?
The accepted stand point is that the results of a polygraph test can be presented as supporting proof of guilt or innocence as it only indicates deception; but cannot prove guilt on its own. In the matter of Amalgamated Pharmaceuticals Ltd v Grobler and others (2004) 25 ILJ 523 (LC), 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. However, the Labour Court (LC) 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.
Can your employer dismiss you by solely relying on polygraph test result?
Supporting evidence should be furnished to corroborate the polygraph test results. A polygraph test cannot prove that the employee is actually guilty of misconduct, it only indicates deception in the employee’s answers. A polygraph test result is circumstantial evidence and the employer cannot solely rely on the test result without submitting supporting evidence to prove misconduct.
The LC in the matter of FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt River  9 BLLR 903 (LC) concluded that, ‘…while polygraph machines reliably record physical reactions to questions, the reliability of the analysis of these tests is controversial.’ The Court accepted that, while, polygraph testing may prove deception, it cannot prove conclusively that people were guilty of offences. Moreover, failure by employees to undergo polygraph test cannot be relied on to prove that employee committed misconduct.
In Sosibo & others and Ceramic Tile Market (CTM) (2001) 22 ILJ 811 (CCMA), the Arbitrator stated that 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. Therefore, to present polygraph evidence solely, in support of the alleged transgression, will be inadequate in proving that the dismissal was fair, in the absence of other corroborating evidence.
Polygraph test cannot be construed as implying guilt, however, it may be regarded as an aggravating factor where there is additional supporting evidence of misconduct. In essence, polygraph test results shows possible deception based on how your body reacts to the questions asked. A failed polygraph test by itself is not the end, substantiating evidence and a failed polygraph test may lead to a misconduct dismissal.
Remember, MISA is just a phone call away.
(Article by Tumi Ntshekang – Edited by Nichole Turner)
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
Mobile App https://onelink.to/w9a7ku