The Quest for the Elusive Truth

Introduction

Someone once asked a well-known sculptor how he goes about chiselling out a perfectly defined statue out of a block of granite rock. The sculptor replied: “I only chisel off every bit of that rock that does not resemble the object of the statue I am creating”. Through the art of chiselling, the sculptor distils the very essence of what he set himself out to achieve. You may have heard this before, and you may wonder what relevance it may have to the subject of this article. Let me clear this up: An integral part of the managerial function is to enforce discipline in the workplace. Doing so and doing it legally and fairly, may sometimes be a very daunting task. As investigator of the alleged commission of an offence, as well as officiating as decision maker in disciplinary proceedings, the line manager often has to weed out those elements and disinformation which disguise or cloak the truth. This takes a lot of careful discerning and often it requires Solomon’s wisdom to eventually get to the truth. When reaching the point where the investigator gets the sense that the truth is persistently evasive, he/she may reach for some mechanism or tool to assist in the quest for the truth. One category of such mechanism or tool is so-called lie detectors. Notably, the most well-known lie detectors are the polygraph test (measuring blood pressure and perspiration during the inquest) and the voice stress analysis (detecting subtle, but significant fluctuation in voice tones and patterns during the inquest). Both of these mechanisms have the objective to identify and expose deception on the part of the subject of the inquest. The relevance of the sculptor’s answer, bringing it within context of the investigator and decision maker’s plight in uncovering the truth in a disciplinary hearing, should now be evident. The truth, in a particular situation, may be there for all to see clearly, like someone showing all the signs and symptoms of being under the influence, or the truth may be hidden and not detectable at first glance. Being able to eliminate that which is deceitful, misleading and untrue in a particular investigation, may therefore go a long way in eventually exposing the truth. The above-mentioned lie detector tests are, proverbially, the “chisels” in the hands of the investigator to discard all factors and elements which do not support the truth. This article explores the use and probative value of lie detectors within context of internal disciplinary proceedings.

What is there to glean from reported cases?

The cases which I researched, approached the use of lie detectors from basically three angles, i.e.: Refusal to submit to a lie detector test In Blignaut / The Core Computer Business (Pty) Ltd (2010) CCMA, the employee refused to undergo the lie detector test, arguing that he was not on duty on the day the stock went missing and, furthermore, he regarded the lie detector tests to be unreliable. The employer relied on the fact that all employees were contractually bound to submit to lie detector tests as and when required by the employer. The employee’s refusal was thus regarded as gross insubordination and the employee was dismissed ipso facto (on account of this very fact). At arbitration in the CCMA (where the employee disputed the fairness of his dismissal) the Commissioner held that the employer in this matter was entitled to oblige the employees, contractually, to undergo lie detector tests as and when required and that it was irrelevant whether the employee in question was on duty or not when the alleged theft occurred. The dismissal was pronounced fair. In Nyathi v Special Investigation Unit (2011) Labour Court (LC), a bit of a different approach was adopted regarding the refusal of an employee to submit to a lie detector test, notably, in cases where the employee is contractually obliged to undergo a lie detector test when so required by the employer. A distinction was drawn between a lawful termination of the employment contract in consequence of material breach of contract and the fair dismissal of an employee as result of misconduct. Just as the employee has the right to resign, as provided for in the employment contract (thus contractually and lawfully terminating the employment contract), the employer may contractually terminate the employment contract on good cause shown, such as in consequence of a material breach committed by the employee. In the latter instance, the employer does not treat the refusal to submit to the lie detector test as misconduct, but as breach of contract. The employer therefore has the right to accept the employee’s repudiation of the contract and terminate the contract. This option is available to the employer where the employee was contractually obliged to submit to a lie detector test, but persistently refused to do so. More often, however, the employer will, in such circumstances, follow the route of subjecting the employee to a disciplinary hearing on a charge of insubordination. This option is also available to the employer and we saw it resorted to in the Blignaut-case above. While the employer is legally obligated to acquire the employee’s consent, contractually or per event, when subjecting him/her to a lie detector test, it would be unfair to penalise or prejudice an employee for refusing to give his/her consent. This however does not prevent an adverse inference to be drawn regarding the motive for such refusal in a specific case. Utilising lie detectors as a selection criterion In Sedibeng District Municipality v South African Local Government (2012) LC, the employer utilised polygraph tests to exclude those candidates who failed the test from the list of applicants for internal vacancies. The case was eventually heard in the Labour Court, where the court held that nothing prevents the employer from using polygraph test results in a situation such as in the present case, however the court stressed that polygraph test results are not, in themselves, reliable indicators of deceit. These test results should therefore not be relied on exclusively within recruitment context, since it constitutes an unfair basis for excluding candidates for appointment. The employer was found to have committed an unfair labour practice in relying exclusively on the polygraph tests and was ordered to pay the employees an amount equal to what they earned after the disputed appointments and what they would have earned, had they been appointed. Terminating services on account of failed lie detector tests in theft cases

• MEWUSA obo Mbonambi / S Bruce CC t/a Multi Media Signs (2005)At arbitration, the Commissioner confirmed the approach, as adopted in other similar cases, namely, that the results of lie detector tests will only have probative or evidentiary value if corroborated by other tested evidence.
• NUMSA obo Mkhonza & others / Assmang Chrome Machadorp Works (2005) MEIBCOut of 65 employees suspected of theft and subjected to polygraph tests, only 5 were found to be deceptive and were consequently dismissed. The Commissioner augmented the results of the polygraph tests, which indicated deception, with other “corroborating evidence”, being that the employees had the means and knowledge to have committed the offence. This, together with the polygraph test results, informed the Commissioner’s finding regarding the employees’ guilt. For obvious reasons, this conclusion can justifiably be frowned upon, although it was not formally challenged. The “corroborating evidence” are, objectively evaluated, not persuasive enough to give credence to the results of the polygraph tests. The approach adopted by the Commissioner regarding the admissibility of polygraph test results was sound, but its application in the case at hand is questionable.
• DHL Supply Chain South Africa (Pty) Ltd v De Beer NO & others (2012) LCTwo out of 8 suspected employees failed their polygraph tests and were eventually dismissed. At arbitration, the dismissals were found to be unfair, since there was no evidence corroborating the results of the polygraph tests. The Commissioner argued that, taking out of the equation the polygraph test results, nothing else links the employees to the offence committed. The employees were reinstated with retrospective effect. The employer took thematter on review to the Labour Court and the court concurred with the Commissioner’s finding.
• Transport & Allied Workers Union of South Africa obo Chipensho / Midbank Bus Services (2012) SARPBC and Sefile / Steel & Pipes for Africa (Pty) Ltd Wonderboom (2011) CCMAIn both the above cases the employer relied on the results of polygraph tests, ostensibly supported by CCTV footage, to justify the dismissals concerned. In both cases the Commissioners however found that the CCTV footage was inconclusive to implicate the employees concerned, which left the only evidentiary basis relied on being the polygraph test results, uncorroborated and thus inadmissible as evidence. The dismissals were found to have been unfair.
• Livhadelo & others / J&A Labour Contractors CC (2012) MEIBCIn this case, the employer corroborated the polygraph test results (employees having been found to be deceptive) with an anonymous tip-off received, implicating the employees concerned in the theft. It was found that the evidence was insufficient to substantiate the charge of theft, more so, since the notion that the employees failed the polygraph tests was accepted on a hearsay basis by the employer (Labour Contractor). Moreover, an anonymous tip-off cannot be conclusive evidence in itself and has to be corroborated, just as polygraph test results have to be corroborated. The dismissals were found to be unfair.

Bringing it all together

Firstly, the dominant principle regarding lie detector tests is that lie detector test results have no probative or evidentiary value on its own. These results have to be corroborated by other tested evidence for it to be given any significant weight in proving guilt. Without this corroborating evidence, the lie detector test results are no more than hearsay evidence. Secondly, it is imperative that the employee must consent to being subjected to a lie detector test. This consent can be derived from a contractual condition formally agreed to between the employer and the employee or from ad hoc consent given, per occasion, where lie detector tests are resorted to. Thirdly, once consented to, the employer may use lie detector test results, not to prove guilt, but to eliminate suspects. The employer, when investigating the matter, will focus only on those suspects who failed the lie detector test, in the search for corroborating evidence. When the employer contemplates making use of lie detector tests in order to uncover the truth, the following considerations should be kept in mind:

• Ensure that the employee to be subjected to the test has formally consented to it;
• Make use of a reputable and qualified examiner to conduct the tests;
• Ensure that the employee to be subjected to the test is able to undergo the test physically and mentally;
• Ensure that the procedure to be followed and the motive for the test are explained to the employee beforehand;
• When lie detector test results are used as evidence, ensure that the examiner is called as a witness.

Lie detectors are by no means a substitute for proper investigative procedures, but it can, in appropriate circumstances and utilised properly, ably assist in uncovering the truth. Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za. Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP