Employers are often enquiring what to do with misconduct or criminal activities such as misappropriation or unauthorised removal of property and suspecting their employees of these allegations and the question of “Can we send our employees for a polygraph test?” often arises.
It had been found by the Courts that, in practice, a polygraph does not serve to prove that someone is actually lying, for the questions are often too broad to exclude that which is neither intended nor sought. And it most definitely does not prove that someone is guilty. It is merely an indication of deception.
Polygraph testing in the workplace is highly contentious and the admissibility of its results remains arguable. The sole reliance by the employer on unspecific polygraph results is insufficient to prove that the dismissal was fair in terms of section 192 of the Labour Relations Act. To only present polygraph evidence is not enough to show that the dismissal was fair because there is no corroborating evidence.
The employer cannot force any employee to submit to a polygraph test. Refusal to do so does not necessarily mean grounds for dismissal, or indicate guilt but may be explained that it is a means for the employee to be provided with an opportunity to underline their defence. Preferably, the employer should obtain written consent. For that purpose the employee should be informed that the examinations are voluntary, the reasons for and type of questions should be explained, it should be explained that he/she has a right to have an interpreter and should he/she prefer, another person may be present during the examination, provided that person does not interfere in any way with the proceedings.
Generally, employers are permitted to use the polygraph test to investigate specific incidents where employees had access to the property which is the subject of the investigation and there is reasonable suspicion that the employee was involved in the incident. The employer must also have been subjected to economic loss or injury to the business. 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.
Manny Galanakis
For People Synergy
For further information on Labour Relations Training for all levels of management, and Labour Relations requirements contact Manny at 0829231789 or Mayne at Bruniquel & Associates on 0827710934 or 021-9753579
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