What is a Polygraph Test?

It is a test used to verify a person’s truthfulness and is often called a ‘Lie Detector Test.’

CAN ONE BE COMPELLED TO UNDERGO A POLYGRAPH TEST?

An employee may not be compelled to undergo a polygraph examination unless she or he agrees to it or a collective agreement or contract of employment provides for it. The agreement must be in writing.

However, it should be noted that even if there is a written agreement in existence, an employee can still refuse to take this test. The individual should be informed that—

• The examinations are voluntary;
• Only questions discussed prior to the examination will be used;
• He/she has a right to have an interpreter, if necessary;
• Should he/she prefer, another person may be present during the examination, provided that person does not interfere in any way with the proceedings;
• No abuse in whatever way will be allowed;
• No discrimination will be allowed; and
• No threats will be allowed.

A qualified polygraph examiner would have to conduct the test under strict control and would have to adhere to the code of conduct that ensures fairness.

WHEN IS THE EMPLOYER PERMITTED TO USE POLYGRAPH? 

Generally, employers are permitted to use the polygraph to investigate specific incidents where— 

1. Employees had access to the property, which is the subject of the investigation. 
2. There is a reasonable suspicion that the employee was involved in the incident. 
3. There has been economic loss or injury to the employer’s business, such as theft of company property. 
4. The employer is combating dishonesty in positions of trust. 
5.  The employer is combating serious alcohol, illegal drugs, or narcotics abuse and fraudulent behaviour within the company. 
6. The employer is combating deliberate falsification of documents and lies regarding the true identity of the people involved. 

WHO GETS THE POLYGRAPH TEST RESULTS? 

Polygraph results can only be released to an authorised person. 

Generally, it is the person who has undergone the polygraph test (examinee), or anyone specifically designated in writing by the examinee, and the person representing the employer or government agency that requested the examination. 

WHAT IS THE STATUS OF POLYGRAPH TESTS AT THE CCMA? 

Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the Commissioner is to determine the admissibility and reliability of the evidence. 

Polygraph tests indicate whether or not the subject has answered the questions truthfully, but are not regarded as being 100% accurate. They may not be interpreted as implying guilt, but may be used to support other available evidence that suggests that the employee concerned did indeed commit the alleged misconduct. In other words, polygraph test results, on their own, are not a basis for proving that someone committed an act or omission as alleged by the employer, but may be used as a factor in determining the probabilities. 

Because polygraph tests are regarded as not being entirely reliable, dismissals based solely on the result of a polygraph test have generally been found to be unfair.

The Commissioners at the Commission for Conciliation, Mediation and Arbitration (CCMA) and the judges at the Labour Court will not accept the results of the polygraph test as being conclusive.

Often, employers do not understand that a negative polygraph test cannot be the sole factor in a guilty finding at a disciplinary enquiry.

The CCMA has, in fact, accepted that polygraph testing can be used as a further aggravating factor against an employee who has been dismissed for dismissible behaviour. However, there must be corroborating evidence.

NEED GUIDANCE ON POLYGRAPH TESTING IN THE WORKPLACE?

Talk to our legal team to understand your rights and responsibilities around polygraph exams. Whether you’re an employer looking to use them lawfully, or an employee unsure of your obligations, Cape Labour is here to help.

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