Conducting oneself with integrity is of utmost importance in the provision of security services. Transparency and truthfulness are of such cardinal importance in this area of work that employees are often expected to undergo polygraph testing – the outcome of which has an impact on their employment. However, the contracts regulating these tests could be somewhat murky.
Galvanic Skin Response (GSR) tests are designed to measure the physiological changes to your body when certain questions are asked. It is assumed that the changes (heart rate amongst others) are a result of the questions posed. The difficulty with polygraph tests is that there are a number of other things that can cause a heart rate to temporarily spike. These include erotic thoughts, spicy foods, or the amount of sleep one had the night before. There are hundreds of possible causes. It is these alternate explanations that makes polygraph testing so notoriously unreliable.
In the recent case before the labour court of Securiforce CC v Mokoena N.O. and Others, Case No. JR731/24, Acting Judge Erasmus had to decide whether a commissioner’s decision on whether a dismissal of a security officer, Mr Ntholeng, was for incapacity or for operational requirements is reviewable. The classification of the dismissal determines whether Mr Ntholeng was entitled to severance pay, which would be the case for the latter, or not, as would be the case for the former.
Read the case here:
https://www.saflii.org/za/cases/ZALCJHB/2025/367.html
Employee must pass polygraph test
The employer, Securiforce, brought an application for the review and setting aside of an arbitration award issued by the commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA) dated 22 March 2024. The commissioner found that the dismissal of Mr Ntholeng was procedurally fair, but substantively unfair, and awarded him two months’ remuneration as compensation.
Securiforce provides security services to its clients, and at the time of the dismissal in question, Mr Ntholeng was placed at the site of a client, being Shoprite Checkers. Mr Ntholeng had undergone training and an integrity test (polygraph) before he was employed by Securiforce. His contract of employment further emphasised the importance of honesty by providing that he agrees to submit himself to polygraph examinations, and that the refusal to take such an examination may result in dismissal. The contract continues by stating that the employer’s operational requirements necessitate that employees must be completely trustworthy, and that if an employee does not pass a polygraph examination, the employee is deemed incapable of continuing his current employment. Alternative employment options should be considered in a consultative process between the employer and the employee, but failure to find an alternative position will result in the incapacity process being followed. Finally, the contract also provides that “failure of a polygraph examination is a substantively fair reason as an operational requirement to embark upon an incapacity procedure due to the impossibility of the employee to perform to the required standard set in terms of the contract of employment.”
The client experienced stock shrinkages and Mr Ntholeng and other security officers subsequently underwent polygraph testing. The polygraph examiner found that Mr Ntholeng was not truthful in answering some of the questions posed to him. Securiforce appointed a facilitator who found that there were no suitable alternative positions for Mr Ntholeng.
The arbitration
The commissioner found that the results of the polygraph test were valid on a balance of probabilities, that Mr Ntholeng was removed from the client’s premises after failing the test in terms of the employment contract, and that Mr Ntholeng was only dismissed after no alternative employment could be found.
It is important to note that an employee cannot be dismissed with the sole reason being a failed polygraph test, therefore Mr Ntholeng was only dismissed after alternative employment was considered and found impossible. The commissioner found the dismissal substantively unfair due to Mr Ntholeng being dismissed for incapacity as opposed to Securiforce’s operational requirements. A dismissal based on the employer’s operational requirements would have entitled Mr Ntholeng to severance pay, therefore he was awarded two month’s salary as compensation.
Incapacity versus operational requirements
A dismissal for incapacity can either be for poor work performance or ill health or injury. Poor work performance relates to whether an employee failed to meet a performance standard. Whether such a dismissal was unfair depends on, firstly, whether the employee was aware, or could reasonably have been expected to be aware, of the required performance standard. Secondly, whether the employee was given a fair opportunity to meet the required performance standard and, thirdly, whether dismissal was an appropriate sanction for not meeting the required performance standard.
In cases of ill health or injury, an employer must consider whether an employee is capable of performing the work and if they are not, whether the employee’s work circumstances could be adapted to accommodate the disability and whether there is any suitable alternative work.
A dismissal based on an employer’s operational requirements is when employees are dismissed due to the employer’s economic, structural, technological or similar needs. These dismissals are known as “no-fault” dismissals as the dismissal is not caused by a fault on the part of the employee. Employees who are dismissed based on operational requirements are entitled to severance pay as referred to above.
The commissioner found that Mr Ntholeng was dismissed for operational reasons and consequently awarded compensation that would serve as severance pay.
Grounds of review
Securiforce contended that the commissioner had misconstrued itself by failing to take into account the evidence which indicated that Mr Ntholeng was dismissed for incapacity and not based on operational requirements. The commissioner pointed out in his award that he had never before encountered the concept of “incapacity due to operational requirements,” but that he was committed to consider the evidence, to determine the true nature of the dispute and resolve it.
The commissioner accepted that Mr Ntholeng was not dismissed based on the failed polygraph test, but that he was removed from Securiforce’s premises as per the agreement and that the dismissal only followed failure to find suitable alternative employment for Mr Ntholeng.
The commissioner found that the law dealing with dismissals for poor work performance and ill health incapacity did not apply to the facts before him. He further considered the law governing dismissals for operational requirements and found that he was “not able to reconcile incapacity and operational requirements in one process.” He concluded that Securiforce conflated the issues and omitted to consider operational requirements as the most suitable route.
Acting Judge Erasmus held that Securiforce’s insistence that it was a dismissal based on incapacity does not mean that the commissioner misconstrued the nature of the enquiry. The commissioner dealt with the evidence before him and found that it should have been an operational requirement dismissal. The fact that the commissioner considered the evidence and identified that the enquiry was of a different nature than what Securiforce alleged is therefore not a reviewable irregularity. It was clear that Mr Ntholeng still had the capacity to perform work for Securiforce, but that its operational requirements – i.e. no alternative employment options – was the reason for the dismissal.
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B Com LLB
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