At the outset, a number of employers are under the erroneous impression that if a polygraph test indicates deception then they are entitled to dismiss an employee on that basis alone. This is incorrect.
The Labour Appeal Court has confirmed that the results of polygraph tests can only be used to justify dismissal where there is other supporting / corroborative evidence of misconduct.[i] It is also critical that polygraph tests are conducted by experts in the field as they will be required to give evidence should an unfair dismissal dispute be referred post dismissal.
Consequently, polygraph tests are only valuable where other evidence, in addition to the results of the polygraph, indicates that an employee has committed misconduct.
Our Courts, however, have also held that contractual requirements requiring employees to subject themselves to polygraph tests are valid provided that they are implemented for genuine operational reasons.[ii] Similarly, the CCMA has held that a refusal to obey a reasonable instruction to submit to a polygraph test may constitute breach of contract.[iii]
For this reason, the sample contract of employment included together with this manual makes it clear that the domestic worker is under a contractual obligation to submit to polygraph testing and the failure to do so will constitute a breach of the contract of employment which may result in dismissal.
Consequently, subject to proper contractual provisions being in place, you may request your domestic worker to subject himself/herself to a polygraph test.
Where a domestic worker refuses to do so, you may advise him/her of the contractual undertaking and admonish him/her that refusing to subject to a polygraph may result in disciplinary action including dismissal.
If your domestic worker persists with the refusal to be searched, the disciplinary process set out in Chapter 8 should be followed. This will include putting the allegation to the domestic worker that the refusal to be polygraphed constitutes a breach of the employment contract and has resulted in a reasonable suspicion that he/she is committing theft. The domestic worker must also be afforded the opportunity to explain why he/she is refusing to be polygraphed.
After considering the explanation and the other factors listed in Chapter 8 (length of service, previous disciplinary record, etc…), a determination can made whether to dismiss the domestic worker.
Conversely, where a domestic worker agrees to undergo a polygraph test
and it indicates deception, additional supporting evidence must be found prior
to dismissing a domestic worker for misconduct.
[i] See DHL Supply Chain (Pty) Ltd v De Beer NO & others (2014) 35 ILJ 2379 (LAC)
[ii] See SA Transport & Allied Workers Union & others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC)
[iii] See SA Transport & Allied Workers Union on behalf of Zimu and Group 4 Securicor Security Services (SA) (Pty) Ltd (2009) 30 ILJ 1674 (CCMA)
