This question raises the difficult issue of how to balance the interests of employers – who might suspect employees of being involved in dishonest activities or under the influence – with the employee’s rights to physical integrity, dignity, privacy and non-discrimination. Of course, no right – not even those enshrined in the Bill of Rights – is absolute and may be limited by the rights of others or the interests of society at large.
There is nothing in our law that prevents an employer from adopting a workplace policy that requires employees to submit to tests or allow themselves and their belongings to be searched. However, the law is less clear about the consequences of employees failing to comply with such policies or undertakings. Many employers have sought to get around this uncertainty by introducing clauses in employment contracts in terms of which employees consent in advance to being tested or searched. Does this make any difference? Probably not much.
We know from arbitration awards and decisions of the labour courts that polygraph results are seen merely as evidence that an employee has told a lie and not as proof of his or her involvement in whatever deed he or she is being accused of. As the Labour Court said in FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River (2010):
If a proven lie in a courtroom cannot by itself prove that the accused is guilty of a crime, then deception purportedly identified by a polygraph examiner cannot provide anything more than proof of a lie. In the context of a disciplinary process the polygraph can be a useful tool in the investigation process but can never substitute the need for a disciplinary hearing. A polygraph test on its own cannot be used to determine the guilt of an employee. In the context of an arbitration, the results of a polygraph may be taken into account where other supporting evidence is available provided also that there is clear evidence on the qualifications of the polygraphist and provided that it is clear from the evidence that the test was done according to acceptable and recognisable standards.
Therefore, even if an employee who is contractually compelled to be tested fails a test, the employer is still saddled with an evidentiary problem: it cannot just rely on the result of the test to prove the employee’s guilt but requires corroborating evidence. But can it get around this by disciplining the employee for refusing to comply with the terms of the contract? Unfortunately not, unless the employer’s circumstances are special. The reason is that misconduct charges will only stick if the rule that was allegedly broken was “valid and reasonable” (clause 7 of the Code of Good Practice: Dismissal). The employer will have to prove a compelling reason for enforcing the undertaking to be polygraph tested.
Nyati v Special Investigation Unit (2011) was such a case. Nyati was a senior official in the Unit who was dismissed for alleged dishonesty and other charges. Although her employment contract required her to undergo polygraph testing she refused to do so. She was then put on suspension, whereupon she approached the Labour Court for an order setting aside her suspension as unlawful. One of the complaints was that the clause itself was unlawful. The court accepted that the Unit had sound reasons for including an obligation to submit to a polygraph and other tests in light of the core business and functions of the SIU, which is to investigate corruption and maladministration in government departments and state institutions. The Court also accepted that, although some of the measures –such as having to submit to a polygraph examination, or having to provide urine and blood samples – may seem to be intrusive, these measures are reasonable in the context of an organisation such as the Unit, provided that they are applied fairly and only when reasonably necessary to do so. Other examples where such obligations could conceivably be legitimate include the security industry and, in the case of employees who occupy very responsible positions, where a high level of trust is required.
Yet, even if an employer can get around these obstacles and prove that the employee was lawfully obliged to be tested, it is not the end of the matter. It still needs to satisfy the arbitrator or court that the test was done expertly and properly and that there is sufficient corroboration available to prove the employee’s guilt on a balance of probabilities. Of course, this does not mean that dismissing the employee would automatically be fair: it also has to be proved that, as a result of the misconduct, the breakdown in the employment relationship is irreparable.
What about drug and alcohol testing? Here employers have a strong ally in the form of sections 8 and 14 of the OHSA and section 2A of the General Safety Regulations. These not only demand that employers keep their workplaces safe but also imposes an obligation of sobriety on employees while also prohibiting the possession of intoxicating liquor or drugs. In our view and in the light of the provisions of the OHSA, a compelling argument can be made by an employer that, in order to comply with its duty to provide a safe working environment and to prevent intoxicated employees from entering the workplace, compulsory drug testing must be allowed in order to comply with the OHSA obligations. It should also be a sufficient justification should the employee try to challenge being tested in terms of section 8 of the EEA (which prohibits medical testing unless a justification for it exists). Refusal to submit to a test would constitute misconduct and, depending on the circumstances and the employee’s history, also possibly justify dismissal.
This leaves the issue of physical searches. Here, again, employers would need to demonstrate that there was a valid reason for taking action against an employee for refusing to adhere to his/her contractual undertaking. This could include the nature of the employer’s operations – the diamond industry comes to mind – or because there is prima facie evidence of the employee’s involvement in possible wrongdoing.
Barney Jordaan for Labourwise