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HR 101 – All About the Polygraph (and other such tests)

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Please note that this pertains to South African Labour Relations and Best Practice requirements

The reality of the matter, if you own your own business, is that you have staff. The reality of the matter if you have staff and if you trade here in South Africa, is that you will experience theft and/or fraud in the workplace. That’s just the way that it is.

What is really important however, is how we deal with it, whether it is from an employer or employee perspective!

On a personal level, I have no problem undergoing a polygraph test or any other type of security test for that matter because – well because I have nothing to hide, so I have no fear about what the results may show.

“But what about people’s rights?” I hear everyone shouting!

Let’s be honest, these days the criminals probably have more rights than their victims and sadly often the innocent get caught up in the mess and that is not something that is unique to South Africa.

Here’s the thing though – both the employer and the employee have rights and not dealing with these rights in a fair and responsible manner is what often gets us into trouble.

The employer who has suffered the loss, be it theft or fraud, has the right to investigate by whatever means he or she has available to them. That loss may result in the closure of the business or the loss of jobs for the other employees. It may have caused the company to come into disrepute and caused the loss of clients or income and sadly this is not something that the employees think of when they cause mischief. Usually it is all about their greed and what they can get away with.

So what is the correct procedure? Well first of all the employee needs to agree, in writing, to having the test performed.

For me, it is a pretty simple and fair requirement and so that my clients don’t have to get everybody’s signature every time something goes pear-shaped, I have a clause in the letter of appointment that says that the employer “reserves the right” to have these various tests done when and if necessary and by the employee signing said contract, they have given written authority to the employer.

Be fair though, even if you do have the written authority of the staff member to run one of these tests, make sure that the person who is conducting the test is properly registered. Actually, if they are not registered psychologists any result that they come to would be considered ‘unscientific, unethical and illegal’ as per the 1986 Industrial Courts finding between Mahlangu v CIM Delatk. Obviously questions need to be pre-set prior to the test taking place, so that questions are not specifically tailored to the staff member in question. This really means that tests need to be run fairly, without bias and certainly without any kind of hidden agenda.

Remember of course that from a legal point of view, the results of a polygraph test only indicate some sort of deception and this of course means that the employer then needs to continue on with the investigation. It does not conclusively prove guilt and you cannot just fire or dismiss someone because they failed their test as the test is known to be not 100% accurate.

Also remember that even though the staff member has signed saying that they agree to the test you cannot actually force them to take one and you cannot dismiss them for refusing to take the test – the charge would have to be amended to ‘breach of contract’.

If the staff member refuses to sign giving authority to the employer to undergo the test a charge of ‘ breach of duty of good faith’ can be brought. In these circumstances it is also a good idea to ‘show’ that there are ‘special circumstances that exist that oblige an employee to assist management in the investigation of an offence’. This will greatly assist your cause.

Clearly however, it is really important to distinguish between all the charges and which one relates to what because if you just charge with say . . dishonesty and the staff member just refused to subject themselves to the test, you are going to end up putting your hand in your wallet . . . . . again!

As usual though, if you are not 100% sure of what you are doing make sure that you seek the services of an experienced Labour Consultant.