On the Job with Wikus van Rensburg - Are you obliged to subject yourself to a polygraph test?

I received a question from a reader who was asked by his employer to take a polygraph test, since stock has been disappearing from one of the storerooms to which he has access.

As is procedurally required, the employer asked everybody who has access to the storeroom to take the lie detection test. The reader would like to know if, and in which instances, an employer may request employees to take such a test.

He also wants to know if he is obliged to take the test. He is concerned that he may fail the test – even though he says he is not guilty of the alleged theft – and lose his job.

According to him, two of his co-workers were caught on surveillance camera carrying stock out of the storeroom without consent.

As to the question of whether an employee is compelled to take a lie detection test, it is dependent on whether the employee’s contract of employment makes provision for it or not.

In the event of the contract making provision for the test, the employee must undergo the test. If the contract does not make provision for it, the employee may elect whether to subject himself to the test or not.

The individual should be informed that the examinations are voluntary and that only specific questions will be asked relating to the purpose of the test.

The employee has the right to have an interpreter, if necessary, and on his or her request another person may be present during the examination provided that the person does not interfere in any way with the proceedings. The examiner’s consent will also be needed, as the person’s presence may interfere with the test result.

However, since it is generally accepted that an employee should agree to any reasonable request from his or her employer, it may be seen as inappropriate for an employee not to adhere to a request to take a lie detection test if the purpose of the test is to prove the employee’s innocence rather than his or her guilt.

According to the CCMA, polygraph test results may not be interpreted as implying guilt, but may be regarded as corroboration evidence only where there is other evidence of misconduct. In other words, on their own polygraph test results are not a basis for finding of guilt.
Even if these results cannot imply guilt on its own strength, a relationship of trust between an employer and an employee will undoubtedly suffer if it is indicated that the employee is deceptive during his or her test.

Although the test results alone cannot prove an employee’s guilt, it will most certainly create doubt in the mind of the employer.

Once the relationship of trust between an employer and employee has been broken, the employer may choose to begin an operational requirement consultation procedure. During this process, the employer and employee should look at possible ways of restoring the relationship of trust.

If this is not possible, the employer may go to the second stage of the procedure, where the termination of the employee’s service is discussed as well as the terms on which such a termination should take place.

Points to discuss at this stage would be how much the employee should be paid and when his services would be terminated.

If both parties agree and adhere to the terms they set out, it would mark the end of their working relationship. However, if the employee is unhappy about the terms suggested by his employer, he could lodge a case of unfair dismissal with the CCMA.

Generally speaking, employers are permitted to use the polygraph to investigate specific incidents where employees form part of the subject of the investigation and where there is a reasonable suspicion that the employee was involved in the incident.

Surveillance footage, on the other hand, could form the basis for a finding of guilt, as long as its authenticity can be proven.

Companies are allowed to put up surveillance cameras on their premises without employees’ consent. This does not threaten an employee’s right to privacy, as the workplace is deemed a public area.

Restrooms are the only areas that my not be put under surveillance.

Since the reader is adamant that he did not steal any items from the storeroom, my advice to him would be to undergo the polygraph test.

If he chooses not to take the test, it will probably raise suspicion with the employer that he (the reader) has something to hide and this would in any case tarnish the relationship of trust.

The surveillance footage – which is admissible in court – will show his two colleagues stealing items from the storeroom, while the reader’s polygraph results could be used as supportive evidence.

Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

Send your labour and other workplace related questions to coetzee@fullstopcom.com.

Issued by:

Full Stop Communications

Coetzee Gouws
041 368 4992
082 575 7991
coetzee@fullstopcom.com
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On behalf of:

Wikus van Rensburg Attorneys