Sonja Vorster
A ‘lie detector test’ correct name is polygraph testing. It is used to verify a person’s truthfulness. There is no specific legislation to control the use of the test or to protect the employee’s right against the abuse of the test.
Polygraph tests results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence which should form a part of the entire comprehensive investigation.
Polygraphists have been accepted as expert witnesses, however their evidence are tested for reliability in the CCMA. The CCMA must determine the admissibility and reliability of all the evidence. Employers must ensure that examiner is duly qualified and members of the Polygraph institute of South Africa.
Employers are permitted to use a polygraph to investigate incidents where –
• Employees had access to property which forms part of the investigation;
• Suspicion that the employee was involved in the incident;
• There has been 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 true identity of the people involved.
It is against the Constitution of South Africa (Chapter 2) to force a person to undergo a polygraph examination, unless consent is given in writing and the employee has been informed that –
• the examinations are voluntary;
• only questions discussed prior to the examination will be used, fair questions not general and wide questions
• right to an interpreter;
• no abuse, discrimination or threats in whatever way will be allowed.
Consent is to be given at the point when such a test is going to be conducted. Employers cannot attempt to hide behind a general agreement in the contract of employment.
A recognised examiner will never just use this clause in the contract as the consent by the employee.
