Pinocchio, had a particular characteristic: Whenever he told a lie, his nose would grow.
The human race has been concerned with truthfulness from the creation of time. In Pinocchio’s case it was extremely obvious to prove that he was telling a lie. In real life, the challenge would seem a little harder. As time continued, a test was developed to verify a person’s truthfulness- “Polygraph Test”. Unfortunately this test has been experiencing some challenges and is, up until today, not as conclusive as Pinocchio’s nose. Although this test has challenges, it is used more often than not, in the South African workplace. The Constitution of South Africa dictates that everyone has the right to Privacy and Dignity. This includes your right not to have your possession seized; or your privacy or your communication infringed. So why are polygraph tests still being used regularly and regarded as relevant although the Constitution guards against it?
In Mustek Ltd v Joseph Tsabadi NO and others the court referred to Tredoux and Pooley by stating: ‘The polygraph is merely a device that measures and records electro-physiological activity…including differential blood pressure, heart rate, respiration rate and skin conductance (subcutaneous sweating)… However, the polygraph cannot and does not measure deception or lying, or the absence of deception or lying. It merely records physiological activity, and any attempt to use it to detect deception involves drawing an inference from the physiological activity that it records.’
In South Africa polygraphs are mainly used to prove the involvement of employees in a specific incident of misconduct in the workplace or as a pre-employment screening tool.
In the workplace context, employees can be indirectly compelled to be tested when their contract of employment prescribes compulsory testing. Should the employee refuse to undergo a polygraph test, his services could legally be terminated. A dilemma is created herewith in that an employee has got the constitutional right to remain silent, yet his contract of employment seems to overrule this right.
In Fairway at Randpark Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others, Bank AJ stated: ‘Even if the commissioner refused to draw any adverse inference from the failure of the individual respondents to undergo polygraph testing he ought at the very least to have considered that this refusal constituted a breach of each of their employment contracts. There is no reason why this clear and conscious breach of employment contract ought not to have been taken into account as an additional factor when considering whether their guilty had been proven on a preponderance of probabilities’.
The same principle was underlined in SA Transport & Allied Workers Union & Others v Khulani Fidelity Security Services (Pty) Ltd where the judge found that employees may be dismissed for operational reasons should they refuse to undergo a polygraph test of which initially formed part of their contract of employment.
One would then ask the question if the inclusion of such a clause in an employment contract can be regarded as valid. A further valid question or concern would be that, in the absence of a formally regulated body that governs the use of polygraphs in South Africa, would it be fair for an employee to agree at the onset of employment to abide by the result or opinion of an expert where there is no regulatory guidance in terms of how he reached his decision?
In South Africa, should an employee fail to pass a polygraph test, he stands to be dismissed together with the existence of other supporting evidence. In DHL Supply Chain SA (Pty) Ltd v De Beer NO and others (2013) JOL 30601 (LC) acting Judge Boqwana said: ‘It is well known that polygraph tests are very controversial. It is also widely accepted and has been found in this court many times that polygraph testing, although admissible, standing alone cannot prove guilt.’
Colin Tredoux stated: “However, the polygraph cannot and does not measure deception or lying. It merely records physiological activity, and any attempt to use it to detect deception involves drawing an inference from the physiological activities that it records”. This is therefore extremely concerning that the conductor of this test, whom has the power to ‘make or break’ a person’s career, is not getting regulated at all.
On the 29th of April 2015, Dr Ray Martin from The Polygraph Institute of South Africa (PISA) stated in an article that:’ … it must be noted that the validity of polygraph examination results, rests in main with the polygraphist.’ Neither the technique nor the qualifications of a polygraphist, is regulated in South Africa which makes the result of a polygraph questionable. Unregulated use of polygraphs poses a high risk of wrongful decisions. Substantiating this point, Nelson is of the view that: ‘the purpose of diagnostic test is to form a conclusion that may serve as a basis for action. This action will often affect the future of an individual, in terms of right, liberties or health. For this reason it’s difficult to imagine an ethical justification for the selection of a testing technique that provides something less than the highest achievable level of diagnostic accuracy’.
The American legislation being the Employee Polygraph Protection Act of 1988 (EPPA) in this regard would seem a valuable guideline to take guidance from. In particular the American legislation, is clear when and when not a polygraph may be used and under which circumstances. Under normal circumstances, polygraph testing of employees is prohibited. An individual can only be forced to undergo a polygraph test under certain circumstances which are clearly regulated in the EPPA.
Each State in the USA creates and governs their own rules relating to the issuing and granting of a license to conduct polygraph tests. The EPPA also governs when a polygraph test can be conducted and when not.
In terms of the EPPA, an employer may not dismiss, discipline or discriminate against an employee based on the results of the polygraph test or for refusing to undergo a polygraph test, without additional supporting evidence.
South African practice currently however allows for the use of a polygraph test under the following circumstances: Employees may be tested if they had access to the property which is the subject of the investigation and there is a reasonable suspicion that the employee was involved in the incident; the employer, suffered economic loss or injury, like theft of company property; the employer is combatting serious alcohol, illegal drugs or narcotic abuse as well as fraudulent behavior or the employer is combatting deliberate falsification of documents and lies regarding the identity of people involved.
The current standpoint of polygraph testing at the CCMA is the following:
‘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 finding of guilt. It can be used only in support of other evidence.’
In summary, South Africa currently faces the following challenges in balancing the interests of employer and employee with regards to the application of the polygraph:
- Polygraphs are widely used without any accredited regulatory body, which renders the employee valuable to unfair labour practice;
- Although the Constitution guards against compelling someone to undergo a polygraph test, it is widely used as a condition of employment;
- If an employee consents in writing to undergo a polygraph, it is admissible with certain conditions;
- If an employee refuses to take the test as agreed in his employment contract, it is seen as a repudiation of his employment.
- The failure of a polygraph test is used to terminate services of employees;
- Polygraph tests are used to replace disciplinary hearings and are used as a retrenchment tool;
- Polygraph tests are used as a selection criteria in dismissals;
- Our legal system generally accepts polygraphs’ validity in ANY circumstances as supporting and expert evidence;
- Employees have no rights with regards to polygraph testing and also no protection against the application of polygraph test.
What can we learn from the American EPPA? Polygraph tests in its entirety are regulated by legislation. It therefore protects an employee to be negatively affected by the polygraph test either from disciplinary action, discharge, discrimination etc. It protects employees when refusing to take the test as well as the results of the test. To balance the interest of the employer and employee, it allows the employer to use a polygraph test under certain and clear regulated circumstances.
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