An upcoming court battle will challenge the practice of using polygraphs in the workplace — which has persisted in South Africa, despite the reliability of lie detector tests having been disputed for almost a century.
Papers filed in the labour court last week contest the assumed lack of legislation that protects workers against the use of polygraph tests.
The matter, brought by the General Industrial Workers Union of South Africa (Giwusa), relates to the dismissal of three warehouse workers at the Silveray Stationery Company in Heriotdale, Johannesburg.
According to an affidavit by Giwusa general secretary Johan Appolis, in early 2018 the workers were instructed by senior managers at Silveray to undergo lie detector tests.
When they refused, they were dismissed for being insubordinate and for breaching their employment contracts — which state that workers agree to submit to polygraph testing.
Silveray is opposing the court application. But it has not yet filed an affidavit responding to Giwusa.
The company had not responded to a Mail & Guardian request for comment by the time of publication.
In his affidavit Appolis says that before the workers were dismissed Giwusa wrote to Silveray to inform the company that the workers had not been insubordinate because a requirement to undergo polygraph testing is at odds with the Employment Equity Act.
Section 8 of the Act states: “Psychometric testing and other similar testing assessments of an employee are prohibited unless the test or assessment being used has been scientifically shown to be valid and reliable; can be applied fairly to all employees; and is not biased against any employee or group of employees.”
The dismissal was challenged at the Statutory Council of the Printing, Newspaper and Packaging Industry, and a commissioner found in favour of Silveray.
Bargaining councils, such as the Commission for Conciliation, Mediation and Arbitration (CCMA), are tasked with resolving labour disputes.
Giwusa is seeking an order to review and set aside the award.
In his award, the commissioner noted that the workers had been disciplined previously for refusing to submit to polygraph testing. He further noted that the workers each gave different reasons for refusing to be tested.
The commissioner made no finding relating to the reliability of polygraph testing but makes reference to a CCMA information sheet that states that there is currently no legislation to regulate the use of polygraphs or to protect workers against the abuse of the test.
“I am persuaded by the employer that the polygraph test was used as a tool to assist investigations. In light of the above, I find that the employees dismissals were both procedurally and substantively fair,” the award reads. “The instruction by management was lawful … Their [the workers’] refusal to undergo polygraph testing was serious, deliberate and persistent.”
During the arbitration hearing, the workers argued that the instruction to submit to a polygraph test was not lawful because psychological tests are prohibited in terms of the Employment Equity Act. Three workers testified under oath that they had signed their employment contracts without reading them.
But Silveray contended that the workers were aware of the rule that refusing to undergo polygraph testing was a dismissible offence.
The company’s national human resources manager, Albert du Preez, testified under oath that the polygraph test was used as a tool to
narrow the focus investigations when there was stock loss in the company.
Du Preez said he was not aware of any legislation that prohibits polygraph testing.
Expert evidence by Professor Colin Tredoux disputed the reliability of polygraph tests based on a number of reports, journals and articles. As per the Professional Board for Psychology, polygraph tests are not classified as psychological tests in South Africa since they do not meet the standards of reliability, Tredoux noted.
In a supplementary affidavit, Appolis outlined Tredoux’s testimony at the arbitration hearing in more detail.
According to Appolis, during his testimony Tredoux referred to a 2003 United States National Research Council report titled, The Polygraph and Lie Detection.
The report indicates that “socially stigmatised groups” — such as black workers — are prejudiced by polygraph tests.
According to the report, “There is evidence suggesting that truthful members of socially stigmatised groups … who are believed to be guilty or believed to have a high likelihood of being guilty may show emotional and physiological responses in polygraph test situations that mimic the responses that are expected of deceptive individuals.”
Giwusa is asking for a review of the award based on the commissioner’s failure to consider expert testimony relating to the reliability of polygraph testing.
In his affidavit, Appolis indicated that the reliability of the expert was never challenged at arbitration.
He stated that the commissioner’s decision failed to “appreciate that an employer’s instruction is open to regulation by legislation and that when it contravenes such legislation, can never be lawful”.