POLYGRAPH TESTING: A HELPFUL TOOL OR INFRINGEMENT OF AN EMPLOYEE’S RIGHTS?

https://www.linkedin.com/pulse/polygraph-testing-helpful-tool-infringement-employees-mike-joubert

- Dr. Leonard Saxe, PhD, American Psychological Association in a publication entitled ‘The truth about lie detectors’

As the feedback I have received suggested, polygraphs are sometimes correct, and has the effect that the subjects may sometimes admit to wrongdoing prior to the test being administrated. I agree that this is a useful tool during the investigating process.

It is however imperative to note that the polygraph industry in South Africa is not regulated through any legislation. As it currently stands, anyone can purchase a polygraph machine, do a short training course, give him/herself a ‘fancy’ title, and purport to be a polygraph ‘expert’. No formal qualifications are required to do- or act as a polygraph expert.

USE OF POLYGRAPH TESTING INTERNATIONALLY

d) In Australia, a judge rejected a polygraph test as, amongst other factors:

- Polygraph testing is devoid of any proved or acceptable scientific basis, and the evidence of the polygraph machine operator is hearsay which is inadmissible.

I will return to the findings in this case in comparison to South African case law later herein.

EXAMPLES OF SERIOUS FLAWS IN POLYGRAPH TESTING

CURRENT PRACTICES

a) Contractual obligation:

It is common for employers in the security industry to include in the contract of employment, a provision in which the employee agrees to be submitted to polygraph testing when so required by the employer, and that a refusal to do so would be regarded as a failure to comply with the terms and conditions of employment (misconduct) on the part of the employee.

b) Request by employer:

There are also instances where employers may merely (in the absence of such a contractual obligation) request the employee/s to undergo polygraph testing. This would normally happen after an incident occurred which has a ‘criminal connotation’ to it i.e. theft.

Some employers may only employ an employee on condition that the employee pass a polygraph test. This is most common with intelligence services worldwide.

It would be common practice, where an employee refuses to undergo a polygraph test, for the employer to then suspect such an employee as being the guilty party of the incident which resulted in the reason for conducting the polygraph test and/or some other misconduct. This unreasonable suspicion on the part of the employer has a serious negative effect on the trust relationship on which the employment relationship is based. This is not caused through any wrongdoing on the part of the employee, but rather the employer’s unfair prejudices.

SOUTH AFRICAN CASE LAW

‘It is accepted that a polygraph is a controversial method of gathering information and that opinion is divided on the probative value of the results.

-Basson J

The court, at paragraph 36 of the judgement and quoting Professor Grogan in Sosibo & Others / CTM (Ceramic Tile Market) [2001] 5 BALR 518 (CCMA), acknowledged the following:

In my opinion, this would be the correct approach.

In this instance, it must be noted that the Australian High Court clearly stated that the evidence of the Polygraphist alone cannot be regarded as ‘expert evidence’.

Given the facts set out herein, this practice would be grossly prejudicial towards any employee.

PURPOSE OF POLYGRAPH TESTING

The practice of polygraph testing is clearly therefore solely to determine who is the guilty party, and to eliminate possible innocent employees. From the feedback I have received, confirmed the practice that where an employee refuses to undergo the polygraph test, the employee is ‘automatically’ regarded as the ‘guilty’ party. This is an incorrect perception which is plainly wrong. I have dealt with employees who stated categorically that if an employer wants to perform a polygraph test on them, the employer is in breach of the trust relationship, and that they will rather resign than to be humiliated in this manner.

ARGUMENT FOR PROHIBITING THE USE OF POLYGRAPH TESTING

It must be noted that in some cases our courts have held that the polygraph test may be admitted into evidence where the Polygraphist testifies as an ‘expert’, despite the Australian High Court found that the individual conducting the test and evaluating the results, is by no means a scientific expert, and the evidence submitted by such an individual cannot be regarded therefore as ‘evidence by an expert’.

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