What is a Polygraph / Voice Polygraph test?
It is a test used to verify a person’s truthfulness and is often called a “Lie Detector Test”; however a Voice Polygraph Test is called “TRUTH VERIFICATION TEST”. The tests can be used for various situations e.g.
- Pre-employment screening: test done before staff gets appointed into a position.
- Periodic screening: screening done on current staff on a quarterly, Bi – quarterly. Or yearly basis. This is on staff that works in areas where theft occur or risk appear on a regular basis
- Incident screening: When an incident occur all staff will be tested fairly in accordance with rules and regulations. The method for the test will be to illuminate staff not guilty of any offence. It is good for honest staff members to know that the employer create a safe and crime free working
Is there any law controlling use of polygraph in South Africa?
Polygraph Testing / Voice Polygraph Testing is a fairly new concept in South Africa, especially in disputes relating to employment relationships. There is no legislation at this point to control the use of the test or to protect the employee’s right against the abuse of the test.
Can an employee be compelled to undergo a Polygraph Test / Voice Polygraph Testing?
It is against the Constitution of South Africa to compel a person to undergo a Polygraph examination / Voice Polygraph Test, unless she or he consents to it. The consent must be in writing – as underwritten by APAVSA or SAPAVSA
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 with be allowed
- No threats will be allowed.
When is the employer permitted to use Polygraph / Voice Polygraph Test?
Generally, employers are permitted to use the polygraph / Voice Stress Test 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 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
Who gets the Polygraph / Voice Stress Results?
Polygraph results cannot be released to any person but to an authorised person as agreed by the candidate on the “Authorization and Release” Form.
Generally it is the person who has undergone the Polygraph Test (examinee), or anyone specifically designated in writing by the examinee, firm, corporation or government agency that requested the examination.
What is the status of the Polygraph Test at the CCMA?
Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the Commissioner is to determine the admissibility and reliability of the evidence.
Polygraph Test may not be interpreted as implying guilt but 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. It can be used only in support of other evidence.
This Information is based on information available from the CCMA and on the CCMA site
Harmse & Rainbow Farms
In this matter the employee was one of 15 who had access or potential access to the missing equipment. When offered an exculpatory polygraph examination, Mr. Harmse at first declined then changed his mind and did complete the test where he was the only person that failed. When offered another examination which could have led to his total pardon, he declined the opportunity and was then dismissed for reasons of breach of trust. The employer subsequently dismissed Mr. Harmse on the basis of not theft, but breach of the trust relationship.
This position and decision of the employer were upheld by the CCMA. Furthermore it was noted that:
- The employer has the right to dismiss an employee whom it can no longer trust provided there are reasonable grounds for such loss of trust based on the actions of the employee.
- The employer had reason to request polygraph examination as a result of suffering a substantial financial loss.
- An employer has a right in circumstances of such loss to exert some pressure on employees to cooperate in the investigation of the misconduct or crime.
- Granting of the option of a re-examination may be seen as a show of good faith by the employer.
- The polygraph examination phase was seen as an integral and crucial part of the investigation.
- The advance notification in writing of the examinees of the intention of the employer to institute polygraph examination as part of the investigation was seen to be fair.
- The procedure was not viewed as an unfair labour practice nor as an infringement of the fundamental rights of the examinee.
- The procedure underscored the fact that the examination was considered as voluntary.
Although the Lower Court has been slow to admit polygraph evidence and the High Court has yet to rule on the admissibility of polygraph results and establish what weight should be placed upon it, the CCMA is acknowledging it as a forensic tool.
Take note that I will follow the following structure:
- Introduction of the person conducting the test
- Explain the reason for the test
- Completion of the pre-test form with the candidate
- Introduction and explanation of the equipment that will be used
- Explanation of the set questions
- Explanation of the Authorization and Release form
- Acceptance of the form
- Giving the results to the candidate (if management agree)
- If fails a second test will be done with the approval of management and the candidate (SAME QUESTIONS OR DIFFERENT).
- Compilation and submission of report to management on findings.
It is very important to note to all staff that the report is not a dismissal report, but rather a process of investigation – as management cannot be held accountable for any more losses.
No staff member is:
- Under suspension
- Or arrested yet