Provided that the examiner is properly qualified and that correct procedure was followed prior to, during, and following the examination there should be no obstacle to introducing the polygraph examination results as evidence at the initial disciplinary hearing and any subsequent CCMA arbitration. There have been some conflicting CCMA decisions regarding the weight that should be given to polygraph evidence.
How much weight is given to the polygraph evidence will often be determined by the qualifications and experience of the examiner, whether there is sufficient initial evidence and whether the polygraph examination results corroborate that evidence.
What is corroborative evidence?
Corroborating evidence (or corroboration) is evidence that supports a proposition already supported by initial evidence, therefore confirming the original proposition.
The polygraph examination results must, therefore, confirm initial/existing evidence.
So what then is sufficient initial/existing evidence?
In order to answer this question it is important to consider that the outcomes of disciplinary hearings and CCMA arbitrations are decided on a balance of probabilities. The chairperson or CCMA commissioner must weigh up the evidence and decide whether the employer has proven that their allegation/charge is more probable than not.
There must be sufficient initial evidence that is corroborated by the polygraph examination result to meaningfully tip the scale in favour of the employer’s charge/allegation against the employee.
Below is a good explanation of balance of probabilities from an English legal decision
(In re H (Minors)  AC 563 at 586), Lord Nicholls explained that it was a flexible test:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury……… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.“
Most investigative polygraph examinations in South Africa are conducted in pursuance of investigation into theft and fraud in the workplace. Theft and fraud are serious allegations and, using the above explanation, the probability that an employee committed theft or fraud will be considered to be theoretically lower at the outset than the probability that an employee swore at a colleague during an argument or lied about why they were late for work, for example.
Aside from understanding the concept of balance of probability it is also important for employers to ensure that all efforts are made to gather the necessary evidence to support their case. What may seem a “slam dunk” case to the unwitting employer may be anything but when the matter is scrutinised by a CCMA commissioner who always has a thorough knowledge of the legal requirements for proving a dismissal was procedurally fair and substantively fair on a balance of probabilities.
Hypothetical Case Facts
Question: Were the staff fairly dismissed?
Certainly those staff that failed their examinations and confessed (Group A) would most likely be considered to have been fairly dismissed provided proper polygraph examination procedure was followed and their admissions were properly obtained without them being placed under duress/undue influence. The fact that they assisted in recovering some of the stolen goods and pointed out where the stolen goods were sold would be further evidence that would be taken into consideration. Provided that Group A do not retract any of their admissions and assuming they admit their wrongdoing or plead guilty during their disciplinary hearings, their dismissals would most likely be upheld at the CCMA.
Question: What about Group B?
Group B would typically contain employees who despite having failed their polygraph examination and, despite having been named as accomplices, would raise arguments that they, for example, were named out of malice or that they were mistakenly identified by their colleagues as accomplices in the thefts. This is where the question of a balance of probability comes into play and where correct post examination interviewing and investigation is critical. If the Group B were dismissed only on the written evidence of the polygraph examination results and written statements made by Group A implicating them they may well succeed in a claim that they were unfairly dismissed despite being equally as “guilty” of the offence as members in Group A. This may seem unjust, however, it is a matter of having sufficient substantive evidence to shift the balance of probability and also to have followed correct procedure. In order for the employer to succeed in defending any CCMA case brought by members in Group B the employer would ideally have ensured that a thorough post examination investigation was carried out and that all possible evidence implicating Group B members was obtained prior to proceeding to a disciplinary enquiry. Further to this it would be essential to have the polygraph examiner and members in Group A provide oral evidence against Group B during the disciplinary hearing and CCMA arbitration. A chairperson who accepts only written evidence is effectively accepting hearsay evidence and this will weaken the employer’s case. The examiner would need to be well versed in the accuracy and reliability of polygraph testing and be would need to be able to confidently present this evidence. The examiner would also need to be able to withstand the rigours of cross examination.
We support the use of the polygraph examination results as evidence in a disciplinary enquiry or at the CCMA provided that there is robust evidence to support the examination result. We encourage thorough pre and post examination interviewing of examinees and thorough post examination investigation to establish strong cases for presentation during disciplinary and CCMA hearings. We do not support weak cases for dismissal as this is inherently unethical.
We also strongly advocate the use of pre employment and periodic polygraph screening of employees as this significantly reduces later incidence of misconduct and effectively costs the employer a lot less in the way of ongoing investigative, security and disciplinary activities.