BUSINESS LAW &TAX
JUNE 2024 WWW.BUSINESSLIVE.CO.ZA
A REVIEW OF DEVELOPMENTS IN CORPORATE AND TAX LAW
Refusal to take polygraph can result in legal dismissal
THE TRUTH WILL OUT
case is unique, but employers would do well •toEach consider test inclusion in employment contracts Fritz Malan, Nils Braatvedt & Themba Maduna ENS hile a polygraph examination alone cannot conclusively determine employee misconduct, it can serve as corroborating 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 what he was required to do regarding his employment
W
contract and the terms of the employer’s policies. In this case, the employer had discovered a new set of tyres 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 examinations. The employee’s employ-
THIS DECISION EMPHASISES THE RECIPROCAL RELATIONSHIP OF TRUST ON WHICH EMPLOYMENT RELATIONSHIPS ARE PREMISED
ment contract included a clause in which he agreed to undergo a 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
/123RF — ULADZISLAUZARETSKI subsequently employer sought to review the arbitration onward in the labour court. The labour court found that the employer’s disciplinary code prohibited the employee’s repudiation and insubordination. It also found that although the employer had explained the importance of the reasons for and consequences of refusing to undergo such a polygraph examination, the employee still refused to undergo one. 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 had been
employed for more than eight years, that his contract was binding on him and that his managers made him aware of his contractual obligations as well as the consequences for refusing to undergo the polygraph examination. Notwithstanding all this, the employee refused to undergo the polygraph examination. In the circumstances, the labour court found the dismissal was substantively fair. This decision emphasises the reciprocal relationship of trust on 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-bycase basis. Employers should consider reviewing their employment contracts to see if there is scope for including the obligation to undergo polygraph examinations. ● ENS represented CCD in this review application.