When can a CCMA commissioner rely on a polygraph test?

Our case law is uncertain. In misconduct matters an employer must present evidence that it used an outside expert to conduct the lie-detection test that links the employee to the offence. 

The person hearing the dispute will decide on the weight to be given to the evidence.  Employers will take a risk if they retrench employees on the ground merely that they declined to submit to a polygraph test.

When is a polygraph test admissible evidence in CCMA proceedings?

The results of a polygraph test should not be admissible if the person who conducted the test is not qualified to testify as an expert about the validity and reliability of polygraph testing in general and the fact that the test in question has been conducted in terms of acceptable standards.

In Truworths Ltd v CCMA and Others (2008) JOL 22565 (LC) the applicant applied to review and set aside an arbitration award.  The test for review is whether the arbitrator’s decision is one which a reasonable decision-maker could not have made.  The arbitrator had ignored the outcome of a polygraph test despite the fact that a trained polygraphist was called to testify at the arbitration proceedings.  The court stated that ”it cannot be said that a decision was reasonable if the arbitrator disregarded material relevant facts or factors placed before her in coming to a decision” and held that this was a reviewable irregularity.  This conclusion lead to the review application being granted and the arbitration award set aside.  The lesson is that a commissioner may not disregard polygraph evidence but still has discretion as to how much weight to accord to the evidence. 

What evidentiary weight must a commissioner place on a polygraph test?

Little weight should be given to polygraph evidence when it is not corroborated by further evidence linking the dismissed employee to the offence.  A dismissal based only on polygraph evidence will thus not be upheld.

Does the refusal to submit to a test justify retrenchment?

In SA Transport & Allied Workers Union & Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 ILJ 130 (LAC) the employees were contractually obliged to submit to periodic polygraph tests. They refused to do so and were retrenched.  The employees argued that the reason for their dismissal was theft, but the court disagreed and held that “[T]he purpose of the polygraph test was manifestly not to show that theft had actually taken place; it was to test the integrity of all who worked in positions where considerable amounts of theft had previously taken place”.  The court ruled that the retrenchments were fair. However, in National Union of Mineworkers & Others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC) the labour court expressed misgivings about the correctness of the decision in Khulani although it was bound by it. 

The law on this issue is thus not clear and employers should think twice before they dismiss and employee because he or she failed a polygraph test.

Spoliation – when a landlord takes the law into his own hands, at his peril

It is a reality that when faced with a tenant who falls into arrears, some landlords consider taking the law into their own hands, for example by either locking the tenant out of the property or cutting off the electricity or water supply to the property. This can be an expensive course of action for the landlord.

The landlord has a duty to allow the tenant undisturbed use and enjoyment of the leased premises for the duration of the lease. Should the Landlord breach this duty, the tenant has the right to apply to Court, for a SPOLIATION order. This means that the Court will order that occupation of the property be restored to the tenant and the Landlord will be liable for the tenant's legal costs of the Spoliation Application, which can be quite substantial. The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period.

The following cases will demonstrate the repercussions of a Landlord taking the law into his own hands:

Locking Out

NTSHWAQELA & OTHERS v CHAIRMAN, WESTERN CAPE REGIONAL SERVICES COUNCIL, & OTHERS 1998(3) 218 CPD. The applicants had lived illegally in shacks on some land. The police and the Council tried to move the applicants to a township and mounted a removal operation. The applicants launched a Spoliation Application, alleging that they were illegally deprived of the undisturbed use and enjoyment of the land in question. The Court found that all the applicants had to prove was that they were in possession of the land and ordered that they be returned to the sites in question and that they be restored to the position they were in prior to their removal. The respondents were ordered to pay the costs of the applicants herein, and effectively, had to re-build their shacks. 

Cutting Off Electricity Supply

NAIDOO v MOODLEY 1982 (4) 82 TPD. The Landlord gave the tenant notice terminating the lease. Summons was issued, however, the parties settled the matter agreeing that the tenant would vacate the property on 1 April 1981. Tenant did not vacate and was again sued for ejectment. On 9 May 1981 the Landlord cut off the electricity supply. The tenant successfully applied for a Spoliation Order against the Landlord. The Court found that the use of electricity was an incident of occupation and that by cutting off the electricity the Landlord had substantially interfered with the tenant's occupation. The Landlord was ordered to restore the electricity supply and pay the tenant's costs of the application.

When a debt prescribes (lapses)

You may have been on the receiving end of a threat from a debt collector or law firm, demanding that you pay a debt, which goes back years.

The Prescription Act provides that the basic period of prescription is 30 years in respect of any ‘judgement of debt’ and 3 years for any ‘other debt’.

The effect is that in the case of any other debt, where no payment has been made for a period of 3 years, the debt has ‘prescribed’. This means that the debt has been completely extinguished and does not have to be paid.

Prescription is ‘interrupted’ by the issue of summons (before the three years are up) or by any express or tacit acknowledgement of liability by the debtor (such as a payment of any amount towards the debt, within the three years).

So some advice: if a debt collector calls or writes to you to claim payment of a debt that is older than 3 years (and you have not paid anything in the past three years, or admitted liability in that time, or the creditor hasn’t sued you) claim prescription and refuse to pay.

CCTV in a public change room

A client asked me:

My son belongs to Durban surf lifesaving club and they have 2 cameras in the boys’ locker room. Is this legal? He does not want to change in front of them and sometimes moves them and then gets into trouble. Please can you just give me a quick view of the law on this?

In South Africa, the right to privacy is protected both in terms of our common law and in section 14 of the Constitution.

Do companies (like Woolworths) have the right to install CCTV cameras in their shopping areas, or does this infringe on people’s rights?

In a recent High Court decision, involving Woolworths, a woman successfully sued Woolworths for damages, when she was stopped and her bag was examined (without justification) in full view of other shoppers, after a security officer at Woolworths saw what he thought was suspicious activity on the CCTV camera.

In the UK, companies need to display a sign indicating that surveillance cameras are in operation.

In SA, it seems that the general sentiment is that people don’t have a real issue relating to using CCTV when the cameras provide additional protection in public spaces against the extremely high levels of crime.

It’s very different when it comes to private places.

In certain locations, such as a public changing room, a person has a legitimate expectation of privacy. Whilst the lifesaving club has presumably installed the cameras to prevent theft, it is highly likely that the right of privacy outweighs the right of the club to conduct surveillance in a non-working environment.

In my opinion, the use of CCTV in a change room would constitute a breach of the son’s constitutional right to privacy.

It is one thing to erect a sign, giving notice to shoppers that they are under CCTV surveillance. Being informed is a key aspect to avoiding allegations of invading privacy. It is an entirely different thing to give such notice in a change room. In that environment, users have a legitimate expectation of privacy.

E-mail usage policy

Every employee has a responsibility to maintain your company’s image and to use emails in a productive manner and to avoid placing your company at risk.

To do so, you really should have an email usage policy in place, so that your employees understand that all messages distributed via your email system, even personal emails, are the property of your company. They must have no expectation of privacy in anything that they create, store, send or receive on your email system and that their emails can be monitored without prior notification, if you deem this necessary. If there is evidence that your employees are not adhering to the guidelines set out in the policy, your company reserves the right to take disciplinary action, including steps that may lead to an employee’s termination and/or legal action.

Email is a business communication tool and users are obliged to use this tool in a responsible, effective and lawful manner. Although by its nature, email seems to be less formal than other written communication, the same laws apply. Therefore, it is important that users are aware of the legal risks of emails that contain confidential or commercially sensitive information, or that may contain, defamatory, offensive, racist or obscene remarks, when you and employee can be held liable.

There are other risks: an email message may legally bind your company, contractually, in certain instances, without the proper authority being obtained, internally; email messages can carry computer viruses. If your employee sends an attachment that contains a virus, your company and the employee can be held liable; by opening emails and attachments from an unknown sender your employee may introduce a virus into the company’s  computer operations.

The policy would require the employee to use your email system for nothing other than legitimate business purposes. Therefore, the sending of personal emails, chain letters, junk mail, and jokes is prohibited.

Employees must only send emails that have content that could be displayed on a public notice board. If emails cannot be displayed publicly in their current state, they must consider rephrasing them, using other means of communication, or protecting information by using a password.

These are some of the issues that you should cover in an email user policy. Contact me if you need help in putting one together.