Legal Issues on use of Polygraph

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

Due to the escalation of crime, fraud and corruption in South Africa, it is essential for the existence of well-trained polygraphists. Many successful companies are making use of trained polygraphists.

The use of the polygraph testing during the process of hiring personnel ensures that accurate information about their past activities is obtained. The screening examinations are valuable in helping to select the best candidates for the job. Therefore, there is no wasting in money to hire deceitful and unreliable personnel.

CCMA Guidelines

Polygraph Testing: Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA):

WHAT IS POLYGRAPH TEST

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

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.

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:

WHAT IS POLYGRAPH TEST

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

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.

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:

WHEN IS THE EMPLOYER PERMITTED TO USE POLYGRAPH

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

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.

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.

RELEVANT LEGISLATION

The Constitution of the Republic of South Africa, Chapter 2

Harmse & Rainbow Farms

In this matter the employee was one of 15 who had access or potential access to the missing equipment. When offered an exculpatory polygraph examination, Mr. Harmse at first declined then changed his mind and did complete the test where he was the only person that failed. When offered another examination which could have led to his total pardon, he declined the opportunity and was then dismissed for reasons of breach of trust. The employer subsequintly dismissed Mr. Harmse on the basis of not theft, but breach of the trust relationship.

This position and decision of the employer were upheld by the CCMA. Furthermore it was noted that:

1) 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.

2) The employer had reason to request polygraph examination as a result of suffering a substantial financial loss.

3) 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.

4) Granting of the option of a re-examination may be seen as a show of good faith by the employer.

5) The polygraph examination phase was seen as an integral and crucial part of the investigation.

6) The advance notification in writing of the examinees of the intention of the employer to institute polygraph examination as part of the investigation was seen to be fair.

7) The procedure was not viewed as an unfair labour practice nor as an infringement of the fundamental rights of the examinee.

8) The procedure underscored the fact that the examination was considered as voluntary.

Although the Lower Court has been slow to admit polygraph evidence and the High Court has yet to rule on the admissibility of polygraph results and establish what weight should be placed upon it, the CCMA is acknowledging it as a forensic tool.

Discussion

Forensic Psychophysiologists have been accepted as expert witnesses by the Council for Conciliation, Mediation and Arbitration (CCMA), whose evidence needs to be tested for reliability (www. ccma.org.za).

The duty of the commissioner is to determine the admissibility and reliability of the evidence. Tests 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. (Kroutz and Distillers Corporation Ltd. KN25613. 13 June 1999; Stern Jewellers and SACCAWU on behalf of Raphael, M. NP144. 30 April 1997; CWIU on behalf of Frank and Druggist Distributors (Pty) Limited t/a Heynes Mathew. WE10734. 14 September 1998) ( www.labourguide.co.za/polygraphs.htm).

Failing a polygraph examination with the presence of supporting corroborative evidence may lead to dismissals for serious offences. Many employers are under the mistaken impression that progressive discipline is to be applied within subcategories of dismissal only. They believe if an employee has a final written warning on file for insubordination, only a subsequent transgression of a related act of misconduct would justify dismissal.

In the 1992 Industrial Court Judgment in the matter between PPWAWU & two others v Mondi Paper Waste Company, the presiding officer stated that “it would lead to absurdity if only warnings related to (the offence) were taken into account … it is an accumulation of penalties which should be taken into account, not an accumulation only of warnings for similar or related misconduct”. The Labour Appeal Court addressed the same issue earlier this year in the matter between National Union of Mineworkers & Mocha v Amcoal Colliery. This judgment stated that the employees “had already been given a final written warning. This means that they had each been warned that they were on the verge of dismissal … The imposition of any punishment which is lesser than dismissal would have been at odds with logic and the very purpose of punishment”.

According to Helena Janisch of Labourwise, the recent case law supports the continued use of polygraph testing as an investigative tool for employers faced with dishonesty, as well as having a limited and supportive evidentiary role to play in disciplinary hearings (Janish, H. 2005).

Should a polygraph examination be conducted by a qualified examiner utilizing acceptable, scientifically recognised testing procedures, instruments and equipment the evidence obtained thereby in conjunction with other supporting evidence should be admissible during disciplinary or arbitration proceedings.

Sosibo vs CTM

SOSIBO & OTHERS v CERAMIC TILE MARKET (2001) 22 ILJ 811 (CCMA)

Following the discovery of stock and cash losses all the employees of the respondent underwent polygraph tests. The three applicants failed and were retested. They failed the tests again. A disciplinary hearing was held and, based only on the polygraph tests, they were dismissed. In proceedings before the CCMA the arbitrating commissioner was required to decide whether such tests were admissible in evidence, and whether a dismissal based only on the evidence of such tests was fair.

Some cases have held the view that ‘our courts do not accept polygraph tests are reliable and admissible. Nor do they draw an adverse inference if an accused employee refuses to undergo such a test’. See Kroutz and Distillers Corporation Ltd (1999) 8 CCMA 8.8.16 KN25613; Malgas and Stadium Security Management (1999) 8 CCMA 10.8.1 GA21495; E Themba & R Luthuli v National Trading Company CCMA 1998 KN16887.

Polygraph test evidence is not admissible as evidence if there was no evidence on the qualifications of the polygraphist, and if s/he was not called to give evidence. See Sterns Jewellers and SACCAWU (1997) 1 CCMA F 7.3.12 NP144; Mudley and Beacon Sweets & Chocolates (1998) 7 CCMA 8.13.3 KN10527; Spoornet - Johannesburg and SARHWU on behalf of J S Tshukudu (1997) 6 ARB 2.12.1 GAAR002861; Chad Boonzaaier v HICOR Ltd CCMA 1999 WE18745.

Although admissible as expert evidence, polygraph results standing alone cannot prove guilt. See the arbitration Metro Rail and SATAWU obo Makhubela (2000) 9 ARB 8.8.3 GAAR003888;

Where there is other supporting evidence, polygraph evidence may be taken into account. See CWIU obo Frank and Druggist Distributors (Pty) Ltd t/a Heynes Mathew (1998) 7 CCMA 8.8.19 WE10734.

The results of a polygraph test are simply an indicator of deception. They do not give details of the extent of misconduct which are essential in the assessment of a sanction. Hypothetically a person might have stolen a trivial amount from the employer, yet the test does not make that distinction. The ‘relevant questions’ put to the applicants were broad and unspecific. Even if they lied in response to the questions, I am unable to assess the seriousness of implied misconduct. Third, the sole reliance by the employer on unspecific polygraph results is insufficient to discharge the onus in terms of s 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. To only present polygraph evidence is not enough to show that the dismissal was fair because there is no corroborating evidence.

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