When you ask polygraph companies or examiners about polygraph testing in the working environment, the answer is always the same- you cannot rely on the evidence of a polygraph alone in the disciplinary process.
In a recent client case, we were faced with the following dilemma; There is no evidence that ties the suspect to the misconduct, other than that he has failed a polygraph and there is a report from a handwriting expert confirming this finding. There were 4 possible suspects, three were cleared by the hand writing analysis, 2 cleared by the polygraph and a 3rd refuses to undergo a polygraph. Logically it seems clear cut, but its not.
In a Labour Court case employees were dismissed for misappropriation of company property, a polygraph test was used as evidence that the employees could be responsible for serious stock losses suffered by the Company. The Labour Court ruled that the polygraph does not prove that someone is actually dishonest or lying, reason being that the questions are often too broad to exclude that which is neither intended nor sought. Further, it stated that the polygraph does not prove that someone is guilty. It is merely an indication of deception.
So we agree then that polygraph testing in the workplace is highly contentious, controversial and the admissibility of its results remains unclear.
We took this matter to the experts and asked Deon van Loggerenberg from Deon van Loggerenberg and Associates, Labour Law specialists to help us get clarity on the issue, from a legal perspective. According to Deon, "The use of a polygraph result on its own is insufficient, in terms of section 192 of the Labour Relations Act 66 of 1995 to prove that the dismissal was fair the test of a balance of probabilities is used. Polygraph evidence alone is not enough to show that the dismissal was fair because there is no supporting or other independent evidence.'
We also asked "Can refusal to undergo the polygraph test constitute a breach of an employee?s duty of good faith?'. According to Deon, "it has been tested at both the CCMA and the Labour Court that it does not. It is the employer that must prove guilt and not the employee that must prove his innocence through a polygraph test. You cannot force an employee to undergo a polygraph test, refusal does not indicate guilt and does not form grounds for dismissal, you cannot draw the inference that if one refuses to undergo a polygraph test that the person is guilty of the allegation or misconduct'.
So does this mean that companies cannot use polygraph testing in the workplace?
"No, It doesn?t! However there are some rules relating to polygraph tests that need to be adhered to, unless you want the test to be found unreliable, unfairly applied and useless in the CCMA or the Labour Court;
- You cannot compel or force an employee to undergo the test, you should obtain written consent and this consent should be informed consent.
- You must agree the questions with the polygraphist, the questions must be clear, unambiguous and not vague.
- Undergoing the test must be voluntary, the reason for and the type of questions should be explained.
- The employee may have an interpreter present and/ or an examiner that can communicate in the home language.
- You may use a polygraph to investigate specific incidents where there has been loss or damage to the Company/ property etc.
- The results should only be made known to an authorised person, such as the person requesting the test or who authorised the test.
- The polygraphist should testify at the disciplinary hearing and arbitration proceedings as an expert witness on how the test was performed, their qualifications, the type of questions and the test used.
- And the results must be supported by other independent evidence.'
More details about polygraph testing is available from Employer's Mutual Protection Service at www.emps.co.za or from Kirsten Halcrow on (011) 678-0807