[2001] 5BALR518 (CCMA)
Division: / CCMA, DurbanDate: / 24/11/2000
Case No: / KN47280
Before: / A Rycroft, Commissioner
Flynote
Application in terms of section 191(5)(a)(i) of the LRA
Dismissal – Substantive fairness – Polygraph tests – Employees dismissed after failing polygraph test, although no independent evidence available to connect them with offence – Dismissal unfair.
Evidence – Polygraph tests – Employer not permitted to rely on result of polygraph test alone to establish guilt of employee.
Editor’s Summary
After the respondent discovered that it had experienced stock losses amounting to R14000 at one of its stores, all its employees, including the manager, were instructed to undergo polygraph tests. The three applicants failed the test twice. After a disciplinary hearing based solely on the results of the test, the applicants were dismissed. The respondent claimed that when the stock losses were discovered, the employees had been consulted, and nobody had objected to the polygraph tests. After the applicants were dismissed, shrinkage levels had dropped to an acceptable level.
The commissioner noted that the results of polygraph tests have traditionally been approached with caution by the courts. However, decisions had been divergent. In the United States, polygraph tests are permitted under limited circumstances, but employers are not permitted to dismiss or otherwise discriminate against employees as a result of the tests alone. The results of such tests are merely an indication of deception. They do not provide evidence of the extent of misconduct, which is an essential element in the assessment of a proper sanction. Furthermore, reliance on the results of polygraph tests alone is insufficient for the discharge of the onus placed on employers to prove that dismissals are for a fair reason. The commissioner rejected the respondent’s suggestion that the mere suspicion raised when an employee fails a polygraph test is sufficient to justify the employee’s dismissal on operational grounds.
All the applicants who sought reinstatement were reinstated. The other was awarded compensation.
Award
Details of hearing and representation
This arbitration took place at the Durban offices of the CCMA on 17 and 23 November 2000. The applicants were not legally represented. The employer,
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Cermamic Tile Market (CTM), was represented by Mr M Maeso of Shepstone and Wylie.
Issue to be decided
The issue to be decided is whether a dismissal based only on the evidence of a polygraph test is substantively unfair.
Background to the dispute
Following the discovery of R14 000 in stock losses and further losses at the cash tills, all employees and the manager underwent polygraph tests. Three employees, the applicants in this case, failed the test. They were offered re-testing and they failed the tests again. A disciplinary hearing was held and, based only on the results of the polygraph tests, the applicants were dismissed.
Survey of evidence and argument
The manager of one of the CTM branches in Durban, Mr S Moodley, gave evidence that, following his assumption of duty as manager, a stock-take was undertaken in February 2000, as it was normal for a new manager to take responsibility for stock handed over. This stock-take followed shortly after the routine January stock-take and it was discovered that in the space of one month there had been a huge stock loss of R14 000, well in excess of the 1% variance allowed. Regular variances at the cash tills were also discovered. Moodley described R14 000 of tiles as being the equivalent of tiles piled in a space 3 metres by 3 metres by 3 metres.
Moodley explained that sales assistants have complete access to stock. They meet customers, show them the stock, load purchases on trolleys, push the trolleys to the till for payment, and finally push the trolleys out to the customer’s vehicle and load the purchases into the vehicle. The system is based on complete trust and all staff are also trained to operate the cash tills.
After approaching the staff to explain the problem, there were no explanations or suggestions. The variances at the till grew worse from February to April, despite a rule that no-one could leave until the tills were balanced. A decision to test the staff by polygraph was taken. After being informed of this decision, no-one objected. After the testing, three employees, the applicants, were offered re-testing because they had failed the tests. They failed again. Disciplinary hearings were held, chaired by Moodley, and, on the basis of the polygraph test results, the applicants were dismissed. Although he had been involved in the stock-take and the decision to test employees, Mr Moodley said there was no other suitable person to chair the hearings. Everyone was in a similar position to him. He did not regard the trainee managers as competent to chair a disciplinary hearing. Since the dismissal of the applicants the situation had improved. In the June stock-take there was only a 0.1% variance.
The only other evidence led by the employer was that of Mr Henry Roberts, a qualified polygraph examiner in the employ of Polygraph and Verification Services CC. His qualifications are as follows: (a) In 1996 he trained as a polygraph examiner in the USA, in a 10 weeks course at the Maryland Institute of Criminal Justice; (b) He trained in Scientific Content Analysis Laboratory for
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Scientific Interrogation in 1997; (c) He underwent Advance Training on the Polygraph at the Argelbright International institute of the Polygraph in 1998; (d) He is a member of the Polygraph Association of South Africa; and (e) He is a member of the American Polygraph Association.
Robert’s evidence was that polygraphy is based upon a scientific theory that any conscious effort at deception by a rational individual causes involuntary and uncontrollable physiological responses generated in the autonomic nervous system which include measurable reactions in blood pressure, peripheral pulse-amplitude, breathing and the electrodermal response.
Polygraph testing involves measuring physiological responses from an individual while that individual answers a series of questions which are reviewed with the person being tested, prior to the beginning of the test. Polygraph instruments record measures from at least three physiological systems that are controlled by the autonomic nervous system. Recordings are usually made of palmar sweating (also known as the galvanic skin or electrodermal response), relative blood pressure (obtained from an inflated cuff on the upper arm), and respiration (obtained from volumetric sensors placed around the chest and/or abdomen). When a person is truthful, the body functions within its normal patterns with no significant or consistent changes.
The most commonly used techniques for the psycho-physiological detection of deception are comparison question tests (Mr Roberts used a specific technique called Modified General Question Technique (MGQT)). The theory of these comparison question tests is as follows: The test assesses a person’s credibility by looking for a differential reaction between two types of questions. The first type of question is known as the Relevant question. Relevant questions are direct accusatory questions that address the issue under investigation (eg Did you steal the tiles?). Control questions (also known as Comparison questions) are ambiguous questions to which the subject is manoeuvred into answering, “No” (eg Have you ever stolen anything?).
The theory of the test predicts that guilty subjects will produce larger physiological responses to the Relevant questions to which they know they are deceptive, than to the relatively unimportant Control questions. Innocent persons being tested are expected to produce larger responses to the control questions, to which they are assumed to be either deceptive, or at least uncertain of the veracity of their answer, than to the truthfully answered relevant questions. Put in another way, the principle is that people will channel their fears and anxiety to what they perceive as the biggest threat.
The Relevant questions put to the three applicants were: (1) Will you tell me the truth on all questions in your test? (2) In the last three months, did you help to steal any stock or money from the company? (3) In the last three months, did you steal any stock or money? (4) Did you benefit from the theft of stock or money from the company? The applicants answered “Yes” to Question 1 and “No” to the other questions. Roberts suggested that these questions were designed to be unbiased against any employee or group.
The duration of the test is about 75 minutes, comprising a case preparation phase, a pre-test interview, a collection of polygraph charts and a post-test interview. During this time Roberts sought, and was given, the consent of the Applicants to be tested and to divulge the results of the test to the employer.
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Following the conclusion of the questioning, the physiological data are evaluated statistically by computer and recorded on the polygraph chart. The software used for this was developed by the John Hopkins Applied Physics Laboratory and is known as Axitron. A “converter box” records the test results and the computer programme transfers this data onto charts. The charts are analysed using a numerical scoring system to determine the probability of deception. A decision of truthful or deceptive is then given, except in those cases where the data are found to be equivocal, then an opinion of inconclusive is rendered.
Roberts cited research by Normam Ansley who combined 12 field validity studies done since 1980, involving 2174 cases, which showed that the polygraph has an average accuracy of 98%. Roberts conceded that he had found employees to be innocent who later had been found to have been guilty. Errors are usually referred to as either false positives or false negatives. A false positive occurs when a truthful examinee is reported as being deceptive; a false negative when a deceptive examinee is reported as truthful. Polygraph errors may be caused by the examiner’s failure to properly prepare the examinee for the examination, by a misreading of the physiological data on the polygraph charts, by a lack of training and experience of the polygraph examiner, by counter-measures from the examinee; by a lack of quality control review, by equipment malfunction, by a failure to properly prepare the examinee for the examination; by poorly worded test questions. In spite of these possible failures, Roberts asserted that in his experience the polygraph test was a reliable indicator of deception. He said that polygraph testing complied with the Employment Equity Act in that the test has been shown to be scientifically valid and reliable, it can be applied fairly to all employees and it is not biased against any employee or group.
The evidence of the applicants was as follows:
Mr S S Sosibo was working as a trainee manager at the time of his dismissal and in fact had been Acting Manager for a two week period in January, during which time there had been no discrepancies at the till. He was of the view that there had been harmony under the previous manager, but as soon as Mr Moodley arrived, problems started. Moodley was very critical of employees’ performance and said that he was going to get rid of a lot of people. After the stock-take, which indicated a R14 000 shortage, it was Moodley who conducted the re-count alone. Despite discovering uncounted items in the GPNT area (Goods Paid Not Taken) and further stock in the lay-bye area, the figure of R14 000 did not change. A Mr Logan Pillay had missed a great deal of sanitary ware which also should have affected the total shortage. Moodley insisted on a figure of R14000. As regards till shortages, Sosibo said that it often happened that money was over-banked and although the bank would later advise CTM of this, it was not reported back to the employees. Sosibo said he has been loyal to the company since 1996 and disputes the finding of the polygraph test. He claimed that he had never taken 1 cent of company property, but did admit that he had taken home a tee shirt and overall. He said that the company’s incentive schemes are good and there is no motivation to steal.
Mr S P Mkhize started working with the employer as a student in 1996, becoming permanent in 1997. He worked as a sales assistant. He denied being involved in theft. He said he was loyal to the company.
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Mr V S Nkosi started about eight years ago as a student and became permanent three years ago. He too worked as a sales assistant. He said it was not a fair dismissal. He said the testing was really triggered by a R500 till shortage and it was being used as proof of something else. He denied any involvement in wrongdoing.
Analysis of evidence and argument
In this case the employer concedes that its case stands or falls on the results of the polygraph test and whether this is admissible evidence. Mr Maeso argued that the prevalence of workplace corruption was so great that the CCMA should lean in favour of employers who are besieged by rampant crime. I was also referred to Southern Sun Hotels (Pty) Ltd v SACCAWU & another (2000) 21 ILJ 1315 (LAC) where Zondo AJP suggested there should be an openness to hearsay evidence to prevent giving in to criminal conduct which cannot be established otherwise.
Previous decisions have approached the admissibility of polygraph tests with caution. The leading case in the area of employment law is Mahlangu v CIM Deltak, Gallant v CIM Deltak (1986) 7 ILJ 346 (IC) where the court considered the use of voice-analysis tests for lie-detection purposes. This case did not involve polygraph tests. The court concluded that voice analysis tests by persons not registered as psychologists were unscientific, unethical, invalid and illegal. In Mncube v Cash Paymaster Services1 (1997) 1 CCMA 2.1.5 (Case No KN1583) the employer led the same polygraph expert as in the present case, Mr Henry Roberts. The commissioner in that case accepted him as an expert witness whose opinion evidence was admissible but raised the question whether the evidence was reliable. Noting that the instrumentation used in Mahlangu was a Mark II voice analyser and that Roberts used an Axciton computerised polygraph instrument, the commissioner accepted that Mahlangu was distinguishable because different technology was used. The commissioner nevertheless relied on the expert testimony in Mahlangu to reach the conclusion that the evidence of Roberts about the polygraph performed on the applicant in that case remained inconclusive and unreliable and did not constitute evidence in corroboration of the employer’s other witnesses.
Following the Mahlangu case, attitudes to polygraph test evidence have followed the several and divergent lines:
(1)
Some cases have held the view that “our courts do not accept polygraph tests as reliable and admissible. Nor do they draw an adverse inference if an accused employee refuses to undergo such a test”. See Kroutz v Distillers Corporation Ltd2 (1999) 8 CCMA 8.8.16 Case No. KN25613; Malgas v Stadium Security Management3 (1999) 8 CCMA 10.8.1 GA21495; E Themba & R Luthuli v National Trading Company CCMA (1998) KN16887;
(2)
Polygraph test evidence is not admissible as evidence if there was no evidence on the qualifications of the polygraphist, and if he or she was not called to give evidence. See Sterns Jewellers v SACCAWU (1997) 1 CCMA
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7.3.12 Case No. NP144; Mudley v Beacon Sweets & Chocolates (1998) 7 CCMA 8.13.3 KN10527; Spoornet – Johannesburg v SARHWU obo JS Tshukudu (1997) 6 ARB 2.12.1 GAAR002861; Chad Boonzaaier v HICOR Ltd CCMA (1999) WE18745;
(3)
Although admissible as expert evidence, polygraph results standing alone cannot prove guilt. See the arbitration Metro Rail v SATAWU obo Makhubela4 (2000) 9 ARB 8.8.3 GAAR003888; NUMSA obo Masuku v Marthinusen & Coutts5 (1998) 7 CCMA 2.9.1 (Case No MP5036); Ndlovu v Chapelat Industries (Pty) Ltd6 (1999) 8 ARB 8.8.19 GAAR003528; but see Govender and Chetty v Container Services CCMA (1997) KN4881 where the dismissal was upheld even though there was no direct evidence linking the applicants to the theft. The commissioner found the inference of the polygraph test to be “overwhelming”.
(4)
Where there is other supporting evidence, polygraph evidence may be taken into account. See CWIU obo Frank v Druggist Distributors (Pty) Ltd t/a Heynes Mathew7 (1998) 7 CCMA 8.8.19 Case No.WE10734.
This survey of trends indicates that there is no clear approach by the CCMA as regards polygraph evidence. There is great caution about its reliability, particularly where it is the only evidence relied upon by the employer. In the light of this cautionary approach it is relevant to consider the terms of the Employee Polygraph Protection Act (29 U.S.C. § 2001et seq.) (“EPPA”) passed by the USA Congress in 1988. The EPPA generally prohibits most private employers from using polygraph tests either for pre-employment screening or for random testing during the course of employment (s 2002). An employer can request an employee to submit to a polygraph test if the test is being administered in connection with an ongoing investigation involving such losses as theft or embezzlement (s 2006(d)). The employer can request a test in connection with an ongoing investigation only if it has a reasonable suspicion that the employee was involved in the incident, and only if the employer provides the employee with a written statement describing the basis of the reasonable suspicion.
There are some limited circumstances in which employers are still allowed to use polygraph tests. Employers who are conducting ongoing investigations, security firms, and drug manufacturers may have the right to request a polygraph, however, they still do not have the right to deny employment, discharge employees or otherwise discriminate against any employee based solely on the results of the polygraph test. If the exemptions apply, and an employee is to be given a polygraph test, the EPPA sets out the examinee’s specific rights during the administration of the test. The EPPA provides that it shall be unlawful for an employer “to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee” (s 2002(2)), and it specifically prohibits employers from disciplining, discharging, or discriminating against any employee or applicant based on the employee’s polygraph test results, or for exercising any rights afforded by the Act.