While a polygraph examination alone cannot conclusively determine employee misconduct, it can serve as corroborative evidence among other factors. But what happens when an employee refuses to undergo a polygraph test?
In the recent decision of CCD Couriers v Numsa obo Butani Fredy Maseko, the Labour Court deliberated on the fairness of an employee dismissal for refusing to undergo a polygraph examination. This was based on whether he was required to do so in terms of his employment contract, and in terms of the employer's policies.
In this case, the employer had discovered that a new set of tyres which had been fitted to one of its vehicles had been replaced with old, worn-out and mismatched tyres. The employer launched an investigation into the matter which included requesting employees to undergo polygraph examination. The employee's employment contract included a clause in which he agreed to undergo polygraph examination, failing which his refusal would constitute a material breach of his employment contract and his employment would be terminated. The employer's disciplinary code specified that a refusal to undergo a polygraph would attract a sanction of dismissal. The employee was charged with repudiating his employment contract and with gross insubordination and was dismissed on both counts of misconduct. NUMSA, acting on his behalf, referred an unfair dismissal dispute to the appropriate bargaining council (a dispute resolution tribunal). An arbitrator held the dismissal to be substantively unfair and the employer subsequently sought to review the arbitration award in the Labour Court.
The Labour Court found that the employee's conduct of repudiation and insubordination was prohibited by the employer's disciplinary code. It also found that although the employer had explained to him the importance of, the reasons for the polygraph examination and the consequences of refusing to undergo such polygraph examination, the employee still refused to undergo a polygraph examination.
The Labour Court considered several factors including that the employee was aware of the rule regarding the requirement to undergo the polygraph examination, that the employee was employed for more than 8 years, that his contract was binding on him and that he was made aware by his managers of his contractual obligations as well as the consequences for refusing to undergo polygraph examination. Notwithstanding all this, the employee refused to undergo the polygraph examination. In the circumstances, the Labour Court found that the dismissal was substantively fair.
This decision emphasises the reciprocal relationship of trust upon which employment relationships are premised. Where an employee has a contractual obligation to undergo a polygraph test, an outright refusal may, in some instances, impact the ability of the employer to trust the employee going forward. Of course, there are instances where certain instructions would be unreasonable or unlawful and even where there is a contractual undertaking that an employee will do something, a refusal may not lead to grounds for a fair dismissal. These matters will have to be measured on a case-by-case basis.
Employers should consider reviewing their employment contracts to see whether there is scope for including obligations to undergo polygraph examinations.
*ENS represented CCD in this review application.
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