Employers permitted to use polygraph testing to investigate specific incidents where:

. Employees had access to the property which is the subject of the investigation;
. There is a reasonable suspicion that the employee was involved in the incident;
. There has been economic loss or injury to the employer's business like theft of company property;
. The employer is combating dishonesty in positions of trust;
. The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;
. The employer is combating deliberate falsification of documents and lies regarding
true identity of the people involved.

Polygraph Testing has been widely accepted by the labour Court and the CCMA. 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 balance of probabilities is used.

Polygraph evidence can be used in labour related cases

It is a commonly known fact that there are disputes 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:
- 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.
- The employer had reason to request polygraph examination as a result of suffering a substantial financial loss.
- 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.
- Granting of the option of a re-examination may be seen as a show of good faith by the employer.
- The polygraph examination phase was seen as an integral and crucial part of the investigation.
- 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.
- The procedure was not viewed as an unfair labour practice nor as an infringement of the fundamental rights of the examinee.

The CCMA says on its own website as well as that of the SA Labour Law guide
website, that polygraph may be used in the workplace. There are many successful cases in the CCMA as well as Labour Court, High and Criminal Court. Contact us for documentation if you require this. We can send you the actual CCMA feedback results and findings.

Polygraph has also been accepted as THE ONLY EVIDENCE in a case to dismiss
staff for theft- where the result proved 2 things: the balance of probabilities and the breach of trust. Our company won this ground breaking case in 2015.

We have records of a case done at Labour Court where a polygraph case appeared. The commissioner at the CCMA had refused to accept polygraph evidence, The matter went further to the labour court. The judge ruled that any commissioner at the CCMA that ignores polygraph evidence commits gross irregularity. The judge states that the polygraph is scientific and accurate and must be considered.

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.
2. The examinee should submit himself / herself voluntary for the test. However it is important to note that if a polygraph is on a contract and the person refuses the test - they could be dismissed for the breach of trust.
3. 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)
- 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.