Can a worker employed by a labour broker be ordered to undergo a polygraph test, and then be dismissed based soley on the results?

The long answer

This is certainly a very grave situation. Let’s look at the polygraph issue first and then at the labour broker employer’s conduct and the relationship between labour brokers and clients, and what is required of them in terms of the labour legislation.

Polygraph tests:

Firstly, an employer may not force an employee to take a polygraph test. Secondly, an employee who refuses to take a polygraph test cannot be deemed to be guilty by the employer. Thirdly, if an employer relies solely on a polygraph test to dismiss an employee, the employer could be found guilty of an unfair labour practice.

How does the polygraph test work?

The polygraph measures changes in sweat, heart rate and breathing in response to questions. 

A GroundUp article in 2021 by Liezl Human reported that Professor Colin Tredoux, a professor of Psychology at the University of Cape Town, testified at the CCMA that polygraphs are psychological tests and that they are scientifically unreliable: “What they measure is physiological arousal. They measure anxiety; this is probably the best way to characterise what they actually measure,” he said. 

The polygraph does this by measuring changes in sweat, heart rate, and breathing. 

Copied from the article:

“Tredoux told GroundUp that polygraph tests are unable to definitively detect whether someone is telling the truth or lying, since deception is not the only thing that could trigger a ‘lie’ on a polygraph test. 

“‘Being anxious about losing your job, but still telling the truth, could easily cause an inaccurate polygraph test,’ he said.”

An article by Labour Guide quotes the CCMA as saying. “It is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless she or he consents to it. The consent must be in writing.”

They say that the person should be told that

1. The polygraph test is voluntary

2. They will only be asked questions that were discussed before the test

3. They have a right to have an interpreter if they need one

4. They can ask for another person to be present for the test, as long as that person does not interfere.

The CCMA says that employers may use the polygraph to investigate specific incidents where (quoted from the article):

• Employees had access to the property which is the subject of the investigation;

• There is a reasonable suspicion that the employee was involved in the incident;

• There has been economic loss or injury to the employer’s business, like theft of company property; (my emphasis)

• The employer is combating dishonesty in positions of trust;

• The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behaviour within the company;

• The employer is combating deliberate falsification of documents and lies regarding true identity of the people involved.

How is the polygraph test regarded by the CCMA and the Labour Court? 

In order for the polygraph evidence to be admissible, the polygraph examiner must be called as an expert witness to explain how the tests were done, what the examiner did, and what the results were. The CCMA must critically examine the polygraph examiner’s evidence. 

Here are some examples of polygraph tests being used in labour issues, and their outcomes:

• In the 2004 case of Amalgamated Pharmaceuticals Ltd v Grobler NO and others, which dealt with stock loss, the Labour Court found that the polygraph test alone could not prove whether the employee was guilty – they needed more evidence – and that the outcome of the test was not sufficient grounds for dismissal. Read more here.

• In 2021, the Labour Court dealt with a similar case in Goldplat Recovery (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others after an employee was charged with misconduct and dismissed following a “failed” polygraph test. This dismissal was found to be unfair due to lack of evidence and the employer’s failure to call the polygraph examiner as an expert witness. Read more here.

• And most recently, on 19 June 2025, an article in GroundUp reported on the Harmony Gold Mining Company Limited v Commission for Conciliation, Mediation and Arbitration and Others case, where Acting Court Judge Connie Phakedi ruled that polygraph tests cannot be relied upon as direct evidence. At best, they can be used to corroborate other forms of evidence.

Your case is more complicated than the above cases, as you were employed by a labour broker rather than by Harmony itself.

The Law Society of South Africa (LSS) says that if you are employed by a labour broker, you can be provided to the client for a period of three months only. After three months, if you continue working for the client, you will be considered their employee.  If any of your rights are infringed on, you may hold the labour broker and/or client liable.

LSS also says that a labour broker must be registered with the Department of Labour. The Labour Relations Act (LRA) and the Employment Equity Act apply to labour brokers as well as employers: all workers have rights under South African Labour law, and are entitled to fair treatment.   

The LRA says that all employees, including those employed through labour brokers, are protected against unfair dismissal. This means that a labour broker cannot terminate an employee's contract without a valid and fair reason, following a fair procedure.

Clients of labour brokers like Harmony Gold are also required to ensure fair labour practices if they use workers who are employed by labour brokers.

The labour broker must ensure that the process leading to the denial of access by its client, Harmony Gold, and any subsequent actions, was fair and followed proper procedure. This has clearly not been the case if Harmony relied solely on the polygraph tests to deny access, and there was no disciplinary hearing or investigation. If Harmony Gold's actions have effectively resulted in you losing your employment, it must be for a fair and justifiable reason, and not solely based on a failed polygraph test.

Labour Guide says, ”Where labour brokers and employment agencies fail to treat their employees strictly according to the law, they are likely to lose at the CCMA or bargaining council:

“For example, in the case of Smith vs Staffing Logistics (2005, 10 BALR 1078) the client informed the labour broker that it no longer needed the services of the employee. The broker therefore removed the employee from the client’s premises and placed him on indefinite standby without pay. At the bargaining council the employee alleged that this constituted unfair dismissal and the reason for the termination was a disagreement that the employee had with the client. The employer denied this but the arbitrator found that:

• Even though the employment contract gave the broker the right to terminate the employment at the client’s behest the dismissal was unfair

• The broker’s claim that the employee’s assignment had been completed was not proven. The employee’s version that the termination was due to his disagreement with the client was more likely

• The broker could not evade its duty as an employer by projecting the role of employer on to the client

• Placing an employee on unpaid standby constitutes unfair dismissal

• The employer had to pay the employee 14 months’ remuneration in compensation.”

So, what can you do?

If I understand you correctly, you were unsuccessful with the CCMA. If that is so, you could refer the dispute to the Labour Court for arbitration, on the basis that the labour broker, as the employer, has effectively unfairly dismissed you by not taking appropriate action following the client's denial of access. While the labour broker may be the employer, the Labour Court may find that Harmony Gold is also at fault because you were denied access without any due process like a disciplinary hearing.

As I have sketched above, the Labour Court has previously ruled that reliance on polygraph tests alone is not sufficient to justify dismissal, and that a fair process must be followed.

You would need a lawyer to take a case to the Labour Court. You could apply to Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

Email: [email protected]

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 
Please Call Me: 079 835 7179 

You could also contact one of the following organisations for assistance:

• Lawyers for Human Rights

Email: [email protected]

Tel: Musina 015 534 2203

Durban: 031 301 0531

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

Cape Town: 021 424 8561

• Legal Resources Centre

Email: [email protected]

Johannesburg: 011 836 9831

Cape Town: 021 481 3000

Durban: 031 301 7572

Wishing you the best,
Athalie