The issue of fairness, when employees are contractually required to undergo polygraph examinations and the issue of the probative ‘weight’ (value) that the polygraph examination findings is given by the Court/presiding officer.
Clients and polygraph examiners sometimes express conflicting opinions regarding the operational fairness of obligatory polygraph examinations requirements in employment contracts. The issue becomes even more complicated when some employers exclude any such provisions because they fear reprisals during arbitrations.
The purpose of this article is to emphasise and confirm the fairness of the inclusion of obligatory polygraph examinations in employment contracts and to emphasise the value of polygraph testimony within the arbitration context.
The aforementioned practise has been scrutinised by many presiding officers within the South African arbitration context to determine if the practise is fair, reasonable, and appropriate. In the case Nkuna v SSS Security Services (case GATW155513-11), Commissioner Rabyanyana clearly demonstrated the fairness of the operational obligation of polygraph examinations within certain employment settings. To argue the fairness of this matter, we can refer to item 7 of Schedule 8 of the Code of Good practice of the Labour Relations Act 66 of 1996. The Act states that dismissal based on misconduct to be procedurally fair if the action or omission was in contravention of any rules or standards stipulated by the relevant workplace. Stated differently, the employer may prescribe various rules within the contract agreement that must be complied with unconditionally.
Rabyanyana in Nkuna v SSS Security Services, continued by arguing in favour for the reasonability of the inclusion of polygraph examination within an employment contract to determine the honesty of employees. Consideration must however be given to the nature of the work in question which in this case included the protection of the customer’s property. It was therefore held that proof of honesty is paramount for the maintenance of a trust relationship between the employer and employee. The need to consider the nature of the business in question was discussed in the case Nyathi v Special Investigating Unit (case J13334/11) wherein justification was given to the need for certain companies to require polygraph examinations base on the nature of their business. The implementation of polygraph examinations as an operational requirement was further confirmed by SA Transport & Allied Workers Union & others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC).
The merits of implementing the aforementioned provision are far-reaching. Previously, very little could be done in cases groups of employees refused to undergo polygraph examinations during investigations. No inclusion or exclusion of suspects could therefore be made, so making such environments attractive to criminal syndicates The implementation of the operational requirement of obligatory polygraph examination as a term of contract may significantly inhibit such activities. This is mainly due to the consequences of refusal within this setting and which was found to be a ground for dismissal by Rabyanyana in Nkuna v SSS Security Services and Nyathi vSpecial Investigating Unit. Rabyanyana argued that refusal to comply with this rule not only breaches the contractual agreement with the employer, but also defeats the trust relationship which is at the centre of all security businesses.
While there is now undisputed consensus that utilising polygraph examinations is part of the operational requirement, conflicting opinions still exist as to the probative weight that should be assigned to such polygraph evidence. At face value, polygraph evidence in isolation generally carries little evidentiary weight. Any arbitration decision based solely on the polygraph testimony of an expert witness is unlikely to be entertained by most Commissioners. This statement is motivated by the findings in Food & Allied Workers Union obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River (2010) 31 ILJ 1654 (LC). The Court in this case concluded that polygraph evidence in isolation only merely had corroborative value. Hence emphasis is placed on the need to identify other additional evidence that can corroborate and support the results of the polygraph examination. As the old adage goes: ‘Corroborative evidence in isolation is as light as a feather, however if grouped together it becomes as heavy as a mill-stone’ (State v Reddy).
In addition, the interpretation of polygraph evidence must be addressed because discrepancies exist as to what exactly is proved by the results. In the case SA Transport & Allied Workers Union & others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC), the Court stated that the results of a polygraph examination do not prove misconduct, but rather serve as an assessment of honesty, integrity and suitability for the position in question. Once more the issue of corroboration must be emphasised. In isolation, polygraph evidence merely indicates that the examinee was dishonest and/or unsuitable for the position in question. However, if this evidence can be corroborated with misconduct such as breach procedure or misconduct then the case against the individual may become exponentially stronger.
In terms of routine integrity assessments such as periodic screening and pre-employment examinations, attention must be given to the mono-directional weaknesses of mere polygraph examinations. As held by Sedibeng District Municipality v SA Local Government Bargaining Council (2013) 34 ILJ 166 (LC) provision was made for the use of polygraph examinations as a means of assessing integrity, but it could not be the sole criteria for assessment. The significance of this finding is far reaching in terms of the recommendations made by examiners during employment vetting. To disapprove an applicant on a mere DI will inevitably result in a contestable case against the client. Continuation of the application of such methodologies may pave the road for the South African equivalent of the Employment Polygraph Protection Act. To counter such limitations, the onus is placed upon examiners to apply assessment techniques such as structured interviews and if necessary interrogations to obtain supplementary information. Furthermore, the aforementioned obstacle emphasises the need for further education outside the realm of polygraphy, so as to incorporate other skill-sets and professions to provide corroborative support. It can be argued that the decision to reject an applicant by a layman polygraphist will carry less weight than that of polygraphist with criminological, psychological or risk management qualifications. Such professionals are far better equipped and qualified to make informed and admissible recommendations based on structured interviews together with the polygraph evidence obtained.
The recommendation that is provided by polygraphist is the opinion of an expert witness and the weight assigned to such evidence will depend on the proficiency of the expert witness. As mentioned in Beukman (2005) when discussing the role of an expert witness in the court, such a witness may only testify on matters that he/she is qualified in. A polygraphist can only testify on the matter of the test results (mono-directionally limited as per the finding of Sedibeng District Municipality v SA Local Government Bargaining Council). However, if the polygraphist possessed additional skills and qualifications such as criminal profiling or risk assessment then his/her testimony is not limited to polygraph evidence and will then consequently carry more weight.
The onus is placed upon each polygraphist to educate their clients regarding the valid procedures and merits of polygraph examinations. The stability of polygraphy as an industry is solely dependent on the operations and competence of each polygraphist, hence the emphasis of continued education. In the competitive open market system in South Africa, those who fail to re-invent themselves and their services will soon become redundant. Consequently, it is the aim of SAPFED to furnish its members with the resources and opportunity to develop as an expert polygraphist.
Compiled by Anrich Gouws, in correspondence with Bouwer, J.L Haupt (2016)
South African Polygraph and Investigation Services.
References: Beukman, A.B. 2005. Professionalising Criminology in South Africa. Unpublished PH.D Thesis, University of South Africa, Pretoria.