The admissibility of polygraph reports at disciplinary hearings and/or at arbitrations have long been a contentious issue at the CCMA and the Labour Courts. There are often procedural challenges by employees, together with challenges pertaining to the ability of the individual conducting the polygraph test, which is raised in the course of a hearing which occasionally catches the employer cold. This article aims to consider the admissibility of polygraph reports together with the weight which a presiding officer would place on such a report at disciplinary hearings or at arbitrations.


At the outset, what is a polygraph test? Simply put, a polygraph test is a test which a person undergoes to verify honesty relative to a series of questions that are put to the individual undergoing the test. At the conclusion of a polygraph test, a report is issued indicating the person’s bodily responses, which would be an indicator as to whether the answers given to questions posed were honest or deceitful.


There is little guidance by way of statute to guide employers as to what hurdles have to be crossed prior to introducing a polygraph report. However, there is decided case law that has placed certain rules in place when issues pertaining to polygraph testing are involved.


In Amalgamated Pharmaceuticals Ltd v Grobler NO and others, the Labour Court considered a matter where employees had failed a polygraph test relating to stock loss. The court found that a polygraph report does not serve to prove that someone is actually lying, as questions which are posed to subjects undergoing the test are often too broad and includes findings that were not intended. The court found that the polygraph report in itself is not proof of guilt, it is rather an indication of deception. In short, the court ruled that the failure of an employee to pass a polygraph test is not sufficient ground for dismissal in the absence of corroborating evidence.


Should an employer wish to subject an employee to a polygraph test, there are certain procedural standards that must first be attended to.


First and foremost, an employee must consent to subject themselves for a polygraph test. As has been held in case law, the employee who will undergo a polygraph test must be explained that the test is voluntary, the reason why the test is being conducted, the nature of questions which will be asked, that the employee is entitled to have an interpreter should they require one and that they may have another person present to witness the test as long as they do not interfere with the proceedings. In ideal situations, the employer should attempt to get written consent from an employee. Employers must bear in mind that an employee who refuses to subject themselves to a polygraph test cannot be deemed to be guilty.


Secondly, and importantly, the employer should agree with the polygraphist on the specific questions to which the employee will be subjected to. An employer must bear in mind that questions posed to an employee should not be vague or unnecessarily broad. Questions posed to an employee ought to be direct and specific to a point. In circumstances where questions are vague and broad, a presiding official may place less weight on such evidence.


Thirdly, the reason for which the employer must be conducting the polygraph test ought to be for valid reasons, for example, circumstances relating to misconduct, economic loss or dishonesty in positions of trust. The employer cannot arbitrarily subject employees to polygraph tests.


Lastly, employers must bear in mind that polygraph reports are private and confidential. Polygraph reports should not be released to any person who is not authorised or designated by the employer. Should an employer release a polygraph report to an unauthorised third person, the employer could open themselves up to civil action.


Employers must bear in mind that a polygraph report is deemed an expert opinion. Accordingly, the employer must call the polygraphist, who would be the expert witness, to testify, inter alia, regarding the manner in which the test was conducted, the qualifications which the expert possesses, the type of questions asked, the actual questions asked, and the manner in which he/she came to the conclusion of honesty or deceit. This can be waived by the parties should they accept the polygraph report as being an accurate representation of the answers provided.


Ultimately, a polygraph report is an expert report which an employer can use in proving the guilt of an employee. A polygraph report must be used in conjunction with other evidence to corroborate the employer’s case against an employee. A polygraph report alone is not sufficient to prove the guilt of an employee. Should an employer rely solely on a polygraph report to dismiss an employee, such an employer could be deemed to have dismissed the employee for a substantively unfair reason.


Artcile by: Avishkar Singh

Dispute Resolution Official – Durban