I recently had a discussion with a business owner who had faced a spate of criminal activity within his company.

As he was unable to find out who the culprits were and when these illegal activities took place, he had surveillance cameras installed in strategic areas. He felt this was the only way to catch the guilty parties, whom he feared would eventually cripple his business.

He suspected that there were accomplices among his staff, who were sharing in the proceeds and helping to hide the crime.

After just two days, his suspicions were confirmed when three employees were caught on camera stealing goods out of boxes that had arrived the day before. They admitted that they had been stealing from the company for some time and were dismissed with the assistance of a labour consultant.

The guilty parties confirmed that other employees were also involved, but refused to supply any names. However, two weeks after the initial dismissals, two others were also caught “in the act”.

The difference between the latter two and the first group were that they flatly denied stealing, even after the evidence was presented to them and the employer wanted to know whether he could submit them to a polygraph test.

This would depend on whether an employee’s contract of employment makes provision for it or not.

If so, the employee has to submit himself/herself to it. If not, it is up to the employee to subject himself/herself to it.

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. Preferably, the employer should obtain the employee’s written consent.

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

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

According to the CCMA, polygraph test results may not be interpreted as implying guilt, but may be regarded as supporting evidence only where there is other evidence of misconduct. In other words, on their own, polygraph test results are not a basis for the finding of guilt.

Labour courts generally agree that a polygraph test does not serve to prove that someone is lying as the questions are often too broad to exclude that which is neither intended nor sought. It may however give an indication of deception.

Generally, employers are permitted to use a polygraph test to investigate specific incidents and where there is reasonable suspicion of misconduct.

Polygraph results are only released to an authorised person, generally one designated in writing by the employer whom requested the examination.
Send your labour and injury on duty questions to coetzee@fullstopcom.com.

Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation, including injuries on duty. They also deal with other aspects of the law.

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