CCMA Polygraph Services & Labour Dispute Support
Legally Compliant Polygraph Testing for Labour Disputes
Legally Compliant Polygraph Testing for Labour Disputes
A landmark case that changed labour law in South Africa
By now most IR practitioners are familiar with the case of Harmse & Rainbow Farms (Pty) Ltd. In this matter, the employee was one of 15 who had access or potential access to missing equipment.
When offered an exculpatory polygraph examination, Mr Harmse at first declined then changed his mind and did complete the test which he was the only person to fail. When offered another examination that could have led to his total pardon, he declined the opportunity and was then dismissed for reasons of breach of trust.
The employer then dismissed him based on not theft, but a breach of the trust relationship. This position and decision of the employer were upheld by the CCMA.
Key Finding: Although the Lower Court has been slow to admit polygraph evidence and the High Court has yet to rule on the admissibility of polygraph results, the CCMA is acknowledging it as a forensic tool.
The Code of Good Practice provides that, where employers are considering dismissing an employee, they should be able to justify this drastic sanction by proving that the employee's misconduct is so serious that it makes continued employment intolerable.
One factor that could constitute such intolerability is the employee's breach of the trust relationship. For example, the employer is entitled to claim that, where an employee is found guilty of dishonesty, the trust element of the employment relationship has been damaged.
A lie detection test only shows you that, based on the specific questions asked, measured against physiological responses, the person told the truth or lied. Therefore, if you want to dismiss an employee, you dismiss them based on breach of trust in the relationship, not the alleged theft itself.
Review of circumstances and development of legally compliant testing strategy
Ensure all testing follows CCMA guidelines and labour law requirements
Detailed reports focusing on trust relationship and procedural compliance
Professional support during hearings and proceedings if required
All testing conducted within the framework of South African labour law and constitutional rights
Comprehensive reporting that focuses on trust breach rather than direct accusations
Testing strategy designed to support fair disciplinary procedures and CCMA requirements
Protect your organization from unfair dismissal claims and litigation
The Harmse vs Rainbow Farms case is a very important precedent that opens the door for businesses to utilize polygraph technology responsibly. However, it may also have negative consequences if untrained and unaccredited persons conduct tests. This may result in serious violations of fundamental rights and put organizations at risk of litigation.
Always use certified, experienced polygraph examiners who understand the legal requirements.
Get professional polygraph support that complies with CCMA requirements and protects your organization.
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