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CCMA and the Polygraph

 
Yes, polygraph evidence can be used in labour related cases
Procedures for employers to follow
Polygraph test results as supporting evidence
CCMA and Labour Court rulings
 

 
 

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.

 

 

 

 

 

Harmse vs Rainbow Farms (Pty) Ltd.

 

In this matter the employee, Mr Harmse, was one of fifteen employees who had access or potential access to equipment that went missing.


At first when Mr Harmse was offered the opportunity to prove his innocence by taking a polygraph examination, Mr Harmse declined to submit himself for the test, but then changed his mind and submitted himself for the test. He was the only person to be found deceptive as a result of the polygraph test.

 

When offered another polygraph test which could have led to his total exclusion from the investigation, he declined the opportunity. He was then dismissed for reasons of breach of trust. The employer has therefore not dismissed Mr Harmse on the basis of theft, but on the count of breach of the trust relationship between employer and employee.


The decision of the employer was upheld by the CCMA.

 

 

 

 

 

Furthermore it was noted that:

 

 

 

 

 

 

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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.

 

 

 

 

 

 

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

 

 

 

 

 

 

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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.

 

 

 

 

 

 

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

 

 

 

 

 

 

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

 

 

 

 

 

 

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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.

 

 

 

 

 

 

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

 

 

 

 

 

 

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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.

 

 

Procedures for employers to follow when introducing the polygraph in the work place

 

1.

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. An addendum to the employee contract is required.

 

Addendum to Employee Contract: Polygraph Tests [Download]

Size: 29Kb

 

 

2.

The examinee should submit himself / herself voluntary for the test.

 

 

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The next criteria is that the Examiner conducting the test must be registered with an accepted and accredited South-African Polygraph Association such as SAPFED and the accreditation can be verified by visiting the web page at http://www.sapfed.org

 

 

4.

The examiner should follow all procedures as stipulated by the code of conduct of SAPFED.

 

 

5.

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)

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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.

 

CCMA Case Reference List [Download]

Size: 64Kb

 

CCMA cases awarded in favour of polygraph [Download]

Size: 118Kb

 

CCMA Polygraph Refusal [Download]

Size: 254Kb

 

Labour Court Case: Truworths [Download]

Size: 185Kb

 

Polygraph Case President (Refusal) [Download]

Size: 124Kb

 
     

 

 

 

 

 

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