The law on liars
JOBURG – The law on polygraph testing is quite interesting and the Constitution offers protection to employees in the event they should undergo one of these tests.
Polygraph testing in the workplace can lead to a legal debacle.
A Morningside-based entrepreneur, who wished to remain anonymous, asked an interesting legal question.
“There has been a significant amount of valuables stolen from my home-based office. An iPad, stationary and memory sticks are just a few of the things that have gone missing. I am so tempted to put my employees through a polygraph test. Is this allowed, do I need consent from my employees before making them undergo the test and is the evidence from this test admissible in court?”
Attorney Claire Waldeck explained, “A polygraph is a test used to verify the truthfulness of an individual’s statement. Many people will know this test as a lie detector. A polygraph test uses psychological data which includes blood pressure readings, heart rate, respiration rate and sweating on the skin. The idea being that the person being examined will fear being caught out lying and his or her body will react to that fear. It is these reactions that will be captured by the polygraph test.”
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The Constitution expands Waldeck’s legal arms to all employees once again and offers protection to those who are forced to undergo the tests. “It is against the Constitution of South Africa to compel a person to undergo a polygraph examination unless she or he consents to it. The consent must be in writing, the individual should be informed that the polygraph test is voluntary and the employee has a right to have an interpreter,” explained Waldeck.
She said the employer may use this test if they have a reasonable suspicion that the employee was involved in the theft.
In terms of labour disputes in South African law, the Commission for Conciliation, Mediation and Arbitration (CCMA) plays a significant role in dealing with labour law matters.
“In terms of the CCMA, polygraphists, who are the individuals who conduct the polygraph test, have been accepted as expert witnesses in court. It is vital to note that polygraph test results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence in court,” concluded Waldeck.
Details: waldeck@waldeckattorneys.co.za
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