A real ‘whodunnit’ and the persistent polygraph problem!

Occasionally employers are faced with a situation where misconduct has been committed, but the identity of the perpetrator is not easily established. Employers may, by looking at circumstantial or other evidence, be able to narrow down a list of possible wrongdoers. In these circumstances, employers often resort to polygraph testing to identify the culprit (or culprits).

The relevance and reliability of polygraph testing in the employment context has always been controversial. Our Courts have viewed the results of such testing with a fair amount of scepticism, particularly in circumstances where an employer fails to lead the evidence of an expert witness to explain how the test works and what to make of the results.

Recently, In Goldplat Recovery (Pty) LTD v Commission for Conciliation Mediation and Arbitration & Others (Unreported case no. JR 488/2019, 26 January 2021), the Labour Court was faced with another case where an employer dismissed an employee solely based on the results of his polygraph test.

In September 2018 an employee of the employer was dismissed after being found in possession of gold concentrate worth about R850 000.00. The employer established that the gold concentrate came from a gold processing room, which was in a restricted area. At the employee’s disciplinary enquiry, the employee indicated that he had not acted alone and that a gold smuggling syndicate was operating at the employer’s operations. The employee refused, however, to divulge any names of those involved.

The employee had not worked in the restricted area. In order to establish how the employee gained access to the restricted area or came into possession of the gold concentrate, the employer to subject each of the seven employees who worked in or had access to the area to a polygraph test.

Only one employee, Mr Maziya, failed the polygraph test. A disciplinary enquiry was convened and he was dismissed. Mr Maziya referred an unfair dismissal dispute to the CCMA for arbitration. The Commissioner found that Mr Maziya’s dismissal was unfair.

In the arbitration award, the Commissioner found that on the evidence before him Maziya, his team, security guards, a forklift driver and the shift supervisor all had access to the restricted area. There was no direct evidence implicating Maziya and the assumption as to his guilt was mere conjecture. The employer had failed to lead any evidence to show that Maziya was the only employee who had failed the polygraph test. The Commissioner also found that the reliability of the results of the polygraph test was open to doubt and that the employer had failed to lead any expert witness regarding their ‘conceptual cogency and accuracy’. Interestingly, the Commissioner awarded maximum compensation to Mr Maziya.

The employer approached the Labour Court, seeking to review the award on several grounds, including that the Commissioner had committed a material error of law in his approach to evaluating the evidence. Mr Maziya contended that all of the grounds of review were without any merit whatsoever.

The Court reconfirmed the test for review, finding that the ultimate question to be asked is whether the Commissioner ‘afforded the parties a fair trial of the issues, considered the principal issues before him and whether the resultant decision falls outside of a band of decisions to which a reasonable decision-maker could come on the same material’.

Turning to the case before it, the Court confirmed that polygraph tests are only fair where there is a reason to suspect employees of being involved in wrongdoing. The Court referred to DHL Supply Chain (Pty) Ltd v De Beer NO and Others (2014) 35 ILJ 2379 (LAC) where the Labour Appeal Court previously held that the mere fact that an employee fails a polygraph test is not in itself sufficient to find an employee guilty of dishonesty. The onus rests with the employer to lead expert evidence, to prove the cogency and accuracy of the polygraph tests.

In this case, the employer had failed to call an expert witness. The employer had relied solely on the results of the polygraph test to establish the guilt of Mr Maziya, ignoring the fact that the results of the other employees who had ‘passed’ the polygraph test had not even been made available to the Commissioner.

The Court found that the Commissioner was correct to conclude that there was more than one reasonable inference to be drawn from the available evidence. Mr Maziya was not the only person who had access to the restricted area at any given time, although he was the only one to have failed the polygraph test. It also did not appear to be in dispute that there were employees who had access to the restricted, but who had not been subjected to a polygraph test. The employer’s witness had also admitted that the security guards were not trustworthy and could have conspired with the employees involved in the theft.

The Court concluded that the employer had ‘hopelessly failed’ to prove the fairness of the dismissal and that Maziya had been dismissed based on mere suspicion. In those circumstances, the Court found that an award of 12 months’ compensation was entirely reasonable. The employer’s application for review was accordingly dismissed with costs.

Employers must exercise caution when relying on polygraph testing. The mere fact that an employer suspects that an employee is dishonest or may be involved in wrongdoing, does not in itself warrant disciplinary action. Greater emphasis should be placed on investigating all possible avenues and, where possible, an independent review of the evidence should be conducted before proceeding with disciplinary action. The results of a polygraph test are, ultimately, only one piece in a complex exercise of solving a case of ‘whodunnit’.

Written by Neil Coetzer and Sechaba Motloung
of Cowan-Harper-Madikizela Attorneys

Neil Coetzer of Cowan-Harper-Madikizela Attorneys,
Sechaba Motloung of Cowan-Harper-Madikizela Attorneys