Polygraph and truth verification tests have been around for some time. You won’t need to look far to find someone with an opinion on these tests, ranging from those claiming that they are all but infallible to those who doubt their accuracy. Regardless, the tests are often administered by employers in the investigation of, primarily, dishonesty misconduct cases.
We know from years of case law that polygraph and truth verification tests, in their various guises, can be used as corroborating evidence, that supports more direct evidence, but that such test results will never be enough on their own to meet the burden of proof on a balance of probabilities.
But what if an employee refuses to consent to undergoing a polygraph test? Does that amount to misconduct? Is such refusal a dismissible offence?
This issue was dealt with in a recent Labour Court judgment in Bidvest Protea Coin v Mbongeni Ernest Ngcobo (Case number 260/17).
The judgment outlined the background facts. “In terms of the employment contract between the parties, the first respondent (the employee) consented to undergo a polygraph or truth verification test as and when requested to do so by the applicant (the employer). The applicant conducts these tests randomly and on any selected employees.”
So, first and foremost, the employee had signed a contract of employment that specifically, among other things, obligated him to undergo a polygraph or truth verification test, when requested to do so by his employer.
However, some time later, the employee was selected randomly for such a test, but “On the scheduled day of testing, the first respondent was provided with the consent form to complete so that the testing could be conducted. He refused to complete the consent form in spite of being given an opportunity to consult his attorney.
As a result, he was charged in a disciplinary hearing with breaching his employment contract and subsequently dismissed. He duly referred an unfair dismissal dispute to the third respondent (CCMA) which was arbitrated by the second respondent (arbitrator).”
At arbitration, the arbitrator held that found that “the consent form provided the first respondent with a choice to refuse to undergo the polygraph test”.
The arbitrator found that the first respondent, by virtue of his employment contract, was being coerced by the applicant to undergo the polygraph test. Therefore, according to the arbitrator, the first respondent had not refused to undergo the test in terms of his employment contract as it compelled him to do so, but only refused to sign the consent form allowing the test to be conducted.
The arbitrator held that the employee had not refused to undergo the polygraph test and thus his dismissal was substantively unfair and reinstated the first respondent.”
The employer challenged the arbitration award, taking it on review to the Labour Court, arguing that “the arbitrator ignored the fact that the first respondent had consented to undergo polygraph tests in terms of his employment contract and that his refusal to sign the consent form amounted to breach of his contractual obligations”.
The Labour Court agreed with the employer. “I agree that the arbitrator ignored the applicant’s evidence and/or did not properly weigh it up. This is because the applicant’s main witness had testified that the examiner could not conduct the testing without the consent form being signed as it is a prerequisite. The purpose of the consent form was to allow the examiner to, among others, put sensors on one’s body.
“This had been explained to the first respondent. The arbitrator also ignored the fact that the first respondent had also in his employment contract consented to undergo polygraph tests. I fail to understand on what basis the arbitrator found that the first respondent was coerced into being tested by the very same employment contract he had voluntarily entered into.”
Quite rightly, the judgment ordered that: “The arbitration award issued by the second respondent (the arbitrator) is reviewed and set aside. The arbitration award is substituted with an order that the first respondent’s dismissal was fair.”
This judgment reminds us that it is important to include compulsory polygraph tests when requested in contracts of employment entered into at the commencement of an employment relationship.
In the absence of such upfront agreement, it is arguable that an employee can reasonably refuse to undergo such tests.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
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