George’s* boss wants to force him to take a polygraph test (lie detector). Can your employer force you to take a lie detector test? Scorpion Legal Protection discusses what the law says and how the tests work.
Scorpion Legal Protection’s advice
A polygraph test is a test used to verify a person's truthfulness and is often called a 'lie detector test.' Polygraph tests are fairly new in South Africa when it comes to dealing with employment issues, and there’s not much legislation in place to control them yet.
However, it is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless they consent to it.
The consent must be in writing and the employee should be informed that:
- the examinations are voluntary;
- only questions discussed prior to the examination will be used;
- he/she has the right to have an interpreter, if necessary;
- should he/she prefer, another person may be present during the examination, as long as that person does not interfere in any way with the proceedings.
It’s important to check your employment contract as well. If your employer has included taking a polygraph test in your employment contract and you signed this contract, it is seen as consenting to taking a polygraph test when the employer requests it. In this case, an employee may not unreasonably refuse a request to undergo a polygraph test.
Generally, employers are permitted to use the polygraph to investigate specific incidents where -
- 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
- 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 the true identity of the people involved
What about the CCMA?
Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. It is the commissioner’s duty to determine the admissibility and reliability of the evidence. Polygraph tests may not be interpreted as implying guilt, but they may be regarded as an aggravating factor especially where there is other evidence of misconduct. In other words, polygraph test results, on their own, are not a basis for a finding of guilt. They can only be used in support of other evidence.
Tips:
- Your employer cannot force you to take a polygraph test – this would be illegal.
- Check your employment contract to make sure you didn’t already sign over consent when you signed it.
- Polygraph results don’t automatically imply you’re guilty, and the CCMA will not see them as automatic guilt either.
Source: www.labourguide.co.za
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.