- 2011/09/25 -

Let’s assume that you underwent a polygraph test at work , and your employer dismissed you on the basis of the results of the test. Can you challenge your dismissal at the CCMA.

To begin with lets understand what a polygraph test is? Generally polygraph tests are used to determine the guilt of an employee during an investigation for misconduct.

The results of a polygraph test do not prove the offence for which an employee may have been dismissed. At best it may simply corroborate other evidence that an employer may have that an employee is guilty of misconduct and is used during an employer’s investigation process.

But the real issue that needs to be determined is just how reliable are polygraph tests and the results that they produce.

Before we deal with South African law, let’s have a look at what other jurisdictions provide.  In the United States polygraph testing of private employees by an employer is prohibited in terms of the Employee Polygraph Protection Act of 1994. In addition this act provides that it is unlawful for an employer to dismiss an employee, discipline or discriminate against an employee who refuses to submit to such a test. The reason why testing is prohibited, except in narrow circumstances, is because of the concerns over the scientific validity of polygraph tests and results.

Polygraph testing measures emotional or cognitive responses to certain questions. A polygraph does this by recording respiration, electrodermal activity, blood pressure and heart rate. So when an employee is required to answer a “difficult” question, the polygraph will note a change in a persons physiology.

However what many employers forget is that a polygraph cannot measure deception or lying. A polygraph examiner simply infers that where the polygraph records a physiological arousal to a particular question, then the employee must be demonstrating deception.  This is where the problems arise, because there may be a number of reasons why an innocent employee becomes stressed when asked a particular question and the polygraph results nonethelss indicate deception. The opposite may apply to an employee who is guilty of misconduct but who is not physiological aroused when asked a difficult question.

In South Africa a factor that may affect physiological responses in a polygraph test is racial stigmatization. For example if the tester or employee is a member of a stigmatized group, the employee may show heightened physiological responses in answering difficult questions. It has been accepted by experts that in South Africa with its history of racial discrimination, racial stigmatization is still widely prevalent and therefore such racial stigmatization may result in false results showing deception.

So what must an employee do at arbitration?

Employers often simply arrive at arbitration and present a copy of the examiners results indicating deception and argue that the employee is guilty of the offence.  First, object to the mere production of the report if the polygraph examiner is not present to give evidence to support his findings. If the polygraph examiner is present ask him to prove his qualifications. In one case the evidence of a polygraph examiner was rejected because although the examiner was an expert he was not a psychiatrist. Furthermore the results were simply an indication of deception and not proof of the offence itself. In addition because the employer had no corroborative evidence to support the polygraph results that the employee was guilty of dishonesty the commissioner found that the employer failed to discharge the onus of proving that it had a fair reason for the dismissal.

For more information contact Kevin Allardyce on 011-694-4060 or Kevin@allardyce.co.za