Court ruling on polygraph dismissals and misclassified terminations

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This case offers important legal lessons for employers who rely on polygraph tests and contractual clauses to justify termination, and for employees navigating the complexities of dismissal procedures.

Legal implications

Polygraph testing and employment contracts

The employment contract between Securiforce and Ntholeng included a clause requiring regular polygraph testing. It stated that failure to pass such a test could lead to dismissal due to incapacity.

However, the Labour Court clarified that failing a polygraph test does not automatically render an employee incapable of performing their duties.

The court reaffirmed that polygraph results, while admissible, must be treated with caution. They are not definitive proof of dishonesty or misconduct and cannot be the sole basis for dismissal unless corroborated by other evidence.

Labour Law

Why employers can't rely solely on polygraph tests for dismissals

Ludwig Frahm-Arp, Tshepiso Rasetlola and Catherine Hendriks  30 Mar 2021

Incapacity vs operational requirements

A central issue was the employer’s classification of the dismissal as one based on “incapacity due to operational requirements”. The Commissioner found this concept to be legally incoherent and concluded that the dismissal was, in substance, due to operational requirements.

The Labour Court agreed, stating that:

• incapacity relates to an employee’s inability to perform duties due to ill health or poor performance;
  
• operational requirements relate to the employer’s business needs, such as restructuring or loss of a client.

In this case, Ntholeng was removed from the client’s site due to failing a polygraph test and was dismissed when no alternative placement could be found. This, the court held, was clearly an operational requirement dismissal.

Severance pay and compensation

Because the dismissal was effectively for operational reasons, Ntholeng should have been entitled to severance pay. The Commissioner awarded him two months’ remuneration as compensation, which the court found to be reasonable and justified.

This reinforces the principle that misclassifying the reason for dismissal can deprive employees of statutory entitlements, and such errors may result in compensation awards.

Law Practice

Polygraph tests must be supported by expert evidence

Jacques van Wyk and Andre van Heerden  19 Aug 2014

Reviewability of arbitration awards

The employer argued that the Commissioner had misconstrued the nature of the enquiry.

The court rejected this, finding that the Commissioner had properly considered the evidence and applied the correct legal framework.

The judgment reiterates that arbitration awards will only be set aside if they are unreasonable or based on a gross irregularity.

Key takeaways

For employers

• Be clear on dismissal grounds: Misclassifying a dismissal can lead to legal challenges and compensation awards. Understand the difference between incapacity and operational requirements.

• Use polygraph tests responsibly: Polygraph results should not be treated as conclusive. They must be supported by other evidence and used within a fair process.

• Follow proper procedures: If dismissal is due to operational requirements, follow the correct retrenchment procedures, including consultation and severance pay.

Labour Law

Cough syrup today, unemployed tomorrow: When zero-tolerance policies end in unfair dismissals

Amandla Makhongwana  6 Aug 2025

For employees

• Know your rights: Employees dismissed for operational reasons are entitled to severance pay. Challenge dismissals that are misclassified.

• Challenge unfair dismissals: Even if a dismissal appears procedurally fair, it may still be substantively unfair if the underlying reason is flawed.

• Polygraph tests are not final: Failing a polygraph test does not automatically mean dismissal is justified. Employees can contest the validity and interpretation of such results.

Final thoughts

This case underscores the importance of precision in employment law. Employers must not rely on contractual clauses alone to justify dismissal, especially when those clauses blur legal categories. The Labour Court’s decision affirms that fairness in dismissal requires both procedural correctness and substantive justification.

In industries where trust is paramount, such as security, polygraph testing may be a useful tool but it cannot replace sound legal reasoning and fair labour practices.