Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09) [2012] ZALCJHB 45 (31 May 2012)

Principle:

1.   Not every consideration that is taken into account in the selection of a candidate for employment or promotion needs to appear in the advertisement.

2.   The exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their deceitful character, in the absence of any other information placing a question mark over their integrity, is unfair.



Facts:

An arbitrator was required to decide whether the municipality had committed an unfair labour practice by not promoting two employees to the posts of Licence Services Centre manager and supervisor respectively. The one employee had acted in the first post since 2002 and the other employee had acted in the second post since 2003.

The posts were advertised in July 2006 and appointments were made with effect from the September 2007. Neither of the two employees was successful in being appointed to the posts they applied for.

Prior to the interviews all the short listed candidates also underwent competency and polygraph testing, to which they had consented in writing. All the candidates were asked at the end of each of their interviews if they had any objection to undergoing competency and polygraph tests. The municipality maintained that the polygraph test was a reasonable and fair criterion to take into consideration in deciding whether or not to appoint them. However, the employees contended that the failure to pass the polygraph test was the sole reason for not appointing them. A witness from the municipality testified that the polygraph test was important enough to change a decision based on interview scores because the test was meant to indicate their honesty and integrity, which both the employees failed.

The arbitrator found that both the employees were better candidates than the other applicants who were appointed and they had higher qualifications than the other candidates, apart from one other applicant. He also found that the individual employees' testimony that they did well when interviewed was not disputed by the municipality. Crucially, the arbitrator held that the reason they were not appointed was because they failed a polygraph test. It had not been stated as a requirement in the advertisement of the posts that applicants would be required to undergo a polygraph tests and the arbitrator found that it was unfair of the municipality to introduce the test as a criterion since it had not been stated in the advertisement. The arbitrator then ordered that the applicant should pay the employees the salary and benefits they would have received had they been appointed to the advertised position with effect from 1 October 2007. In addition he awarded them each a year's salary at the lowest scale of a licence service centre manager.

On review at the Labour Court the municipality argued that it was not obliged to spell out every factor that might be taken into account in the selection process in the advertisement. The court agreed, holding that not every consideration that is taken into account needs to appear in the advertisement, though it is certainly preferable to mention upfront a factor that might completely disqualify a candidate. The court held that the arbitrator did misdirect himself in emphasising the importance of the criterion not being advertised. But the court went on to hold that even if polygraph test results constitute relevant material in determining a person's integrity, the exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their deceitful character, in the absence of any other information placing a question mark over their integrity is unfair.

The court held that the municipality had committed an unfair labour practice relating to promotion in relying exclusively on the result of a polygraph test to determine the honesty of the candidates. The court made an order of compensation.

Extract from judgement

[34]   The essence of the dispute about the fairness of the failure to appoint the employees is whether the employer was entitled to rely on the polygraph test results to disqualify them for appointment in circumstances in which they would otherwise have been employed based on their interview scores. It is apparent that the results of the competency test played no role in the selection process provided a candidate's interview score was one of the four highest.

[35]   Addressing the significance of the polygraph testing, applicant's counsel, Mr Brassey, argued that if it was legitimate to make subjective assessments of candidates in the interview process and if the interview process could legitimately include questions aimed at ascertaining a candidate's integrity, then there was no inherent reason, in principle, why polygraph testing could also not be used as a means of assessing honesty. Although he conceded that polygraph testing was highly controversial and inappropriate as the sole measure of guilt in the context of dismissal disputes, he argued that this did not mean polygraph testing could not be used as a legitimate assessment tool. In support of this contention, the applicant argued that the courts have not held that polygraph test results are something an employer cannot take account of.

[36]   It followed therefore that the courts have implicitly recognised that polygraph test results do have some probative value and are not worthless. Consequently, polygraph testing may be used as a legitimate tool in considering promotions.........................................

[40]   Even if polygraph test results may constitute relevant material in determining a person's integrity, the question remains whether it is fair to rely exclusively on them as a touchstone of integrity in the recruitment context, where the prejudice to an applicant that might follow rejection on account of a polygraph test is not the same as that of an employee facing a dismissal. In this case, there was no other independent evidence that the two employees were previously implicated in some wrongdoing or corruption. It might be said that because the consequence of not being promoted is less serious than being dismissed, an employer is entitled to place greater reliance on polygraph testing as a one method of assessing job applicants, despite its unreliability. However, in this instance, it was the sole reason for not appointing candidates who would otherwise have succeeded, thereby making it not merely one of many factors to weigh up, but a deciding one. In such circumstances, the same concerns about its reliability as an accurate measure of deception which make courts hesitate to accord it a decisive impact in disciplinary cases, ought to raise similar concerns when eliminating candidates who would otherwise be appointed.

[41]   Consequently, I am of the view that the exclusive reliance on the polygraph test results to eliminate candidates for appointment on the basis of their deceitful character, in the absence of any other information placing a question mark over their integrity is unfair.