IS THERE ANY LAW CONTROLLING USE OF POLYGRAPH IN SOUTH AFRICA?
There is no specific labour legislation at this point to control the use of the test or to protect the employee’s rights against the abuse of the test, but there are several court cases on the matter.
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.
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.
WHEN IS THE EMPLOYER PERMITTED TO USE POLYGRAPH?
Generally, employers may use the polygraph to investigate specific incidents where—
· If there is a reasonable suspicion that the employee was involved in the incident.
· There has been economic loss.
· There is suspicion dishonesty/fraud in positions of trust.
· There is suspicion of alcohol, illegal drugs or narcotics abuse.
WHAT IS THE STATUS OF POLYGRAPH TESTS AT A DISCIPLINARY HEARING?
· Paleographists have been accepted as expert witnesses.
· The expert’s evidence needs to be tested for reliability, therefor the expert needs to testify.
· The duty of the chairperson is to determine the admissibility and reliability of the evidence.
· Polygraph tests are not regarded as being 100% accurate.
· Polygraph result cannot on its own be used to show guilt.
· It may be used in support other available evidence that suggests that the employee concerned did indeed commit the alleged misconduct.
· Dismissals based solely on the result of a polygraph test have generally been found to be unfair.
SUMMARY
· Polygraph test can only be used in a hearing if the employee agreed to it prior to the test (usually contained in the contract of employment)
· The test is voluntarily.
· The person conducting the test must testify at the hearing about the process of the test and the result.
· A conviction on a polygraph result alone is considered unfair.
· The test can be used to support other evidence and a conviction may follow.