Yes, polygraph evidence can be used in labour related cases
It is a commonly known fact that there are disputes as to whether polygraph evidence can be used in labour 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 utilising polygraph test results.
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.
Procedures for employers to follow when introducing the polygraph in the work place
An addendum to the employee contract is required.
Addendum to Employee Contract: Polygraph Tests (click to download)
- First of all the employer must make sure that his contract with the employee is correctly signed with regard to the use of Polygraph tests within the business.
- The examinee should submit himself / herself voluntary for the test.
- The next criteria is that the Examiner conducting the test must be registered with an accepted and accredited South African Polygraph Association such as SATVC and the accreditation can be verified by visiting our members tab on this web page http://www.satvc.org or send us an email at firstname.lastname@example.org.
- The examiner should follow all procedures as stipulated by the code of conduct of SATVC.
- In some cases the polygraph evidence can be submitted as supporting evidence.
Polygraph test results as supporting evidence
An employee is implicated in the theft of property from the company. The goods that were stolen were under his care and he is the only key holder to the area where the goods was stolen from. After an internal investigation was done it was established that this employee was either responsible for the theft of the stock or involved with a second or third party in stealing the stock.
The employee was then requested to submit himself for a polygraph test. After the test was conducted the result indicated that the employee was deceptive when answering questions specifically regarding the theft of the stock and involvement therein.
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 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 where as his contract clearly state 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.
This charge can only be used if the addendum to the employee contract as available on this site was signed by the employee.
CCMA and Labour Court Rulings
Download CCMA and Labour Court Rulings relating to polygraph evidence. Attachments are in .PDF format and requires Adobe Acrobat Reader or similar to view. Click on the link to download: