The mere fact that an employee fails a polygraph test is not in itself sufficient to find an employee guilty of dishonesty.

This was confirmed in a Labour Appeal Court case, DHL Supply Chain (Pty) Ltd v De Beer NO and Others (2014) 35 ILJ 2379. The Court made clear that the onus rests with the employer to lead expert evidence to prove the accuracy of the polygraph test.

The controversy surrounding polygraph tests and the reliability of same has for some time been a topic of debate in our judicial system. Indeed a recent Labour Court case, Goldplat Recovery (Pty) LTD v Commission for Conciliation Mediation and Arbitration [2021] JOL 49890 (LC) has again dealt with a matter where an employee was dismissed solely based on the results of a polygraph test.

An employee had been found in possession of gold. At his disciplinary hearing he argued that there was a gold smuggling syndicate and that he had no access to the restricted area in which the gold was kept. The company set their targets on anyone who had access to the restricted area and subjected most of the employees to a polygraph test. One employee was found to have failed the test and was dismissed.

The employee referred an unfair dismissal dispute to the CCMA and the Commissioner found the dismissal to be unfair. The company took the award on review in the Labour Court. The Court held that the employer failed to call an expert witness to prove the validity of the polygraph test and failed to submit into evidence the other employees polygraph tests even though they had ‘passed’. The employer was ‘hopeless’ in their endeavor to prove that the dismissal was fair and dismissed him on mere suspicion.

Even if a provision in an employment contract which states that an employee could be dismissed solely on a negative polygraph test result exists, it can not be said to be fair. In a recent CCMA case, Mlangeni v Corporate Investigating and Veracity Assessments [2021] 3 BALR 264 (CCMA), a security guard was dismissed for allegedly stealing stock from a client. The company made him take a polygraph test and the result registered as deception. After refusing to sign a settlement agreement, the security guard claimed unfair dismissal while the company maintained that it was contractually entitled to terminate his employment.

Thus, employers should be weary of solely relying on the results of polygraph tests. If absolutely certain about the unlawful activity, expert evidence should be led to prove the accuracy of the results. Generally, a contractual provision permitting termination based off a negative polygraph test will be unfair.

For more information relating to Employment Law kindly email us on [email protected].

Written by Meegan Reddy – Candidate Attorney.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at [email protected] directly for advice applicable to your specific matter.

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