Employers frequently encounter instances of misconduct or criminal behaviour, in the form of misappropriation or theft, within the workplace. The challenge lies in identifying the specific details of when, how, and by whom these actions are carried out and whether any other accomplices were involved.
Employers increasingly use polygraph tests as part of their investigations into instances of suspected misappropriation and theft. A polygraph test, commonly known as a lie detector test is a diagnostic tool used to measure physiological indicators. The underlying assumption is that deceptive answers may lead to detectable changes in these physiological parameters.
Polygraph testing can be helpful in an investigation. Still, can an employer require that an employee undergo a polygraph test as part of an ongoing investigation into suspected misappropriation or theft?
Although there is no particular legislation governing the specific use of polygraph tests within the workplace, employers can request that an employee undergo one, however, participation must be voluntary. In this context, voluntariness should be documented through a written agreement of consent or included in their employment contract.
Legal Framework:
In the case of GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) [2021] ZALCJHB 356, the Employer experienced a stock loss of R170 000-00 in January 2018.
All employees including the department managers in which the loss occurred were required to undergo a polygraph test. Employees were contractually obligated to undergo and/or to subject themselves (amongst other things) to a polygraph test. Ten out of thirteen employees in that department underwent the test.
The remaining three, namely, Edwin Malemone, Albert Mohau and Lucas Manamela refused to take the test citing various reasons. The Employer issued final written warnings against the three employees. The employees refused to sign the Final Written Warnings.
Union Official Challenges Employer
On 13 February 2018, the union official addressed a letter to the Employer essentially demanding the Employer to withdraw the warnings issued to their members. The main reason is that the polygraph test is psychological and is prohibited in terms of section 8 of the Employment Equity Act. From this communication, it became clear that the written warning did not assist the Employer in achieving the intended purpose.
As a result, the Employer resorted to instituting disciplinary action against the trio which resulted in their dismissal based upon their refusal to follow a lawful and legitimate instruction by refusing to submit themselves to a polygraph test and material breach of contract.
Court Rejects Challenges on Contractual Ground
The court found that the essence of the Employer’s case was that the polygraph tests within its operations were driven by the relevant clause in the contracts of employment. Furthermore, the agreement entered into between the Employer and the trade union confirmed the employees’ consent to polygraph testing.
Despite this, the individual applicants had repeatedly refused to undergo polygraph tests. There is no law prohibiting polygraph testing. Furthermore, the Employer never used a polygraph test to determine the employees’ guilt but rather as supporting evidence and an investigative measure.
Employers can require their employees to undergo a polygraph test, provided that the employment contract explicitly includes provisions for such testing, and the employee willingly consents to being subjected, among other obligations, to a polygraph test. Alternatively, employers must obtain written consent from employees before administering polygraph tests to prevent potential labour disputes about lawful testing.
Do you conduct annual polygraph tests? Be sure that you’re covering all of your bases and contact us today for legal clarification.
