Forensic Audit finds… Polygraph testing by GEA was illegal
– Over 20 persons sacked for failing, while others were kept
– calls made for former employees to be compensated
By Kiana Wilburg
In the absence of laws for guiding polygraph testing in Guyana, forensic auditors have found the Guyana Energy Agency’s (GEA) involvement in such acts to be illegal.
What is even more alarming to the auditors is the fact that the GEA was found to be biased in the termination of employees who failed the test. In fact, GEA in some cases, kept employees who did not pass the test while in over 20 instances, it terminated those who failed or refused to take the test.
These revelations, among others, were contained in a detailed report prepared by auditors of the Nigel Hinds Financial Services. In that document, they outlined that in developed countries where polygraph testing is guided by the law; there must be a provable, reasonable suspicion that an employee was involved in the theft or other conduct triggering the polygraph testing.
Strangely, they found that this was not the case for employees tested by GEA.
Procurement
GEA CEO, Mahender Sharma
During their investigation, the forensic auditors were told by GEA’s Chief Executive Officer, Dr. Mahender Sharma, that the procurement of the polygraph testing service was organized and executed by the former regime.
He maintained that GEA has no records or documentation pertaining to the purchase of the programme. As such, the details of the costs of the polygraph testing programme as it related to the testing of GEA employees is not available at the agency.
Implementation
The auditors noted that the GEA implemented the polygraph testing programme in 2009 for a select group of its employees.
However, the auditors said that this finding is in stark contrast to evidence which showed that January 31, 2014 was the earliest time that GEA has a document authorizing the polygraph testing. They noted in their report that the programme was implemented over the period 2009 to 2014.
Auditors also noted that no evidence could be found to suggest that Sharma requested authorization to implement polygraph testing from the former Prime Minister, prior to implementation of the programme or during the time period 2009 through 2014.
Additionally, the forensic auditing team was unable to gather any evidence that suggests that the employees who were polygraphed as part of the polygraph testing programme gave their consent.
Termination of Employees
The forensic auditors said that with the exception of two employees, Mr. Vernon James and Mr. Shorwin Johnson, no evidence was found to show that GEA was authorized by the former Prime Minister, Sam Hinds or by the Office of the President to terminate employees who failed the test.
They said, too, that Sharma’s reason for sacking James because he refused to follow instructions to take the test is inconsistent with the basis for termination.
The auditors also found that there were no provisions in the employment contracts for employees to be polygraphed, prior to June 26, 2014. However, a letter entitled “2014 Polygraph Results” dated June 26, 2014, from Dr. Sharma to Dr. Roger Luncheon, included, among other things, a revision in the employment contracts for persons employed in the fuel marking division.
One of the added clauses read, “The Officer shall be required to present himself to undergo polygraph tests at the time and venue stipulated by the Agency. The Officer shall be given sufficient notice prior to the scheduled polygraph tests such that all necessary arrangements may be made.”
Another clause stated, “Continuous absence or willful refusal to comply with (the test) shall result in immediate termination of contract of service…”
Resignation vs Termination
The auditors noted that among those employees who were polygraphed and failed, most were terminated, some resigned and five were retained.
Sharma told the auditors that those who resigned must have learnt about their results before management of GEA was able to serve them a letter of termination.
However, based on the examination of records of employees who failed the polygraph test, the forensic auditors noticed that resignations of some of the employees occurred after those who failed the test on the same date were terminated.
“For example, former employee Mr. Sayaid Ahamad resigned on May 29, 2013 and his colleague Mr. Collis Phoenix was terminated on May 14, 2013. Both of these employees were polygraphed at the same time and both failed the test. It is apparent that those who resigned were given the opportunity, while others who failed the polygraph tests were immediately terminated,” explained the auditors.
They added, “We did not obtain any explanation from Dr. Sharma as to why employees who failed the polygraph tests were retained as employees of GEA.”
Polygraph Questions and Results
The auditors noted that GEA employees were asked a series of questions during the test. These included; 1) Have you ever committed any serious crime? 2) Have you done anything to bypass or alter the controls of contraband fuel in Guyana? 3) Are you intentionally omitting or falsifying any information on your application? 4) Have you benefited or profited in any way by helping the contraband of fuel since you have been in GEA.
The auditors also noted that it was unable to obtain copies of the original transcripts of the polygraph test results for 2010, 2012, and 2013
They said, too, that certain employees who are usually included among the list of those polygraphed were not always tested.
“For example, both Ms. Narissa Samuels, Senior Marking Officer and Mr. George Jaundoo, Fuel Marking Manager, were included among those polygraphed to 2014, but excluded in the polygraph test for 2014,” expressed the auditors.
Legal Issues
The forensic audit team discovered that eight former employees of GEA filed a lawsuit against GEA. Of the eight employees, one employee (Mr. Vernon James) was terminated for refusing to be polygraphed and the other seven were terminated for failing the polygraph test.
The names of those employees are Ameer Ali, Collis Phoenix, Hillon Chester, Holyann France, Jeannel Natasha Noble, Nickeisha Gordon, and Nksi Dalgetty.
In response to this litigation, GEA hired Attorney-at-Law Mr. Manoj Narayan of Mohabir A. Nandlall &Associates on July 19, 2013 and incurred legal fees for the preparation of defence.
Extracts from the agreement between GEA and the Attorney-at-Law, states, “As full consideration for the services performed by Counsel under the terms of this Agreement, the GEA shall pay the sum of $2M for services satisfactorily performed. $1M shall be paid to Counsel upon signing this agreement. The remainder shall be paid upon conclusion of the matters.”
This legal matter has not been settled and thus the outcome is yet to be determined.
The continuation of the Polygraph Testing Programme based on a letter from Minister with responsibility for the energy sector, David Patterson, dated August 28, 2015, is currently being reviewed by Cabinet.
In the interim, the auditors have recommended that the use of the polygraph testing on employees be discontinued until Guyana has the applicable laws to govern polygraph testing.
They called for immediate action to be taken to compensate employees who were terminated as a result of the Polygraph Testing Program conducted by GEA over the period 2009 to 2014.
Oi yugi/Cobra, could this be considered ethnic cleansing?