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Polygraph testing: Worthwhile tool in disciplinary action?

Peter McDermott
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It's important to remember you may require an employee to undergo polygraph testing during, for example, a disciplinary action. However, you may not force or coerce (through occupational detriment or similar) an employee to submit to such test as he has a constitutional right to bodily integrity and privacy. Even if the employee previously agreed to polygraph testing (as part of the terms and conditions of his employment contract), he may still legitimately refuse to take the test.

If your employee refuses to take part in polygraph testing, he will be in breach of contract. You won't be able to institute disciplinary action against him.

However, South African labour law has consistently shown that even a material breach of contract isn't sufficient (taking into account that substantive cause and procedural adherence isn't shown) to dismiss an employee.

What can happen if an employee refuses to undergo polygraph testing?

Legally, if an employee refuses to take a polygraph test nothing serious will happen to him. However, this isn't to say that he won't suffer any negative consequences whatsoever.

In Meleni & Others v Rohloff Administration (2006) 27 ILJ 1960 (CCMA):

  • A number of employees had been implicated as members of a group which was defrauding the company.
  • The employees were given an opportunity to clear their names by submitting to polygraph testing.
  • Those who refused to take the test were considered to have done so to avoid a possible negative result.
  • This means that the company was entitled, legitimately, to assume that the employees were guilty. The logic behind this is that an innocent employee wouldn't turn away from the opportunity to be confirmed innocent by a polygraph test.

Since polygraph test results aren't recognised - in isolation - as sufficient evidence of wrong doing (and thus an adequate cause of disciplinary action), the argument could be made that negative assumptions are more useful as a tool than a negative result would've been.

It's vital employees aren't convicted of misconduct on the strength of polygraph results alone. At the very least an, an objective third party should be able to find, on a balance of probability, that the employee is more likely to be guilty rather than innocent. The polygraph results should only be used as evidence to strengthen this finding.


Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions

 


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