With the prevalence of crime in the work-place, such as theft and fraud, as well as issues such as sexual harassment, industrial sabotage and industrial espionage, being extremely high in South Africa, the use of the polygraph is an invaluable tool to establish the truthfulness of an employee, says the Polygraph Institute of South Africa (Pisa).

Pisa integrity assessment centre CEO Hendrik van Rooyen adds that there are a growing number of businesses that use the polygraph technique as part of a pre- employment screening process. The reason for this is, he says, that a formal criminal record check with the police does not really add any value to determine if a prospective employee has or has not been involved in theft or fraud previously.

The case of Harmse v Rainbow Farms (1997): WE 1728 – Commission for Conciliation, Mediation and Arbitration of South Africa (CCMA) – set an important precedent in South African labour law. Its finding allowed for businesses to use polygraph technology in the workplace in a responsible and sensible manner.

As such, there are rules that need to be adhered to regarding the use of polygraphs, including the stipulations of the Bill of Rights as contained in the Constitution, says van Rooyen. He adds that, in this regard, the most important rule is that an employee is not compelled to submit to a polygraph examination. The examination must always be voluntary and questions regarding religion, sexual orientation, political affili- ation and union membership are not allowed and the individual has the right not to self-incriminate.

The main benefit of polygraph is that critical elements of information can be quickly confirmed or rejected. However, Van Rooyen also points to the polygraph as primarily an aid to an investigation, which cannot be regarded as the sole source of evidence. He strongly suggests that the polygraph always be used in conjunction with a proper investi- gation.

Werksmans director Sandile July stresses that, in a court of law, a polygraph test cannot be used as proof of an individual committing an offence. The law of evidence states that what is admissible is evidence that will assist the presiding officer to come to a conclusion, and July says that a polygraph test will only provide an indication that an individual is not giving consistent answers. Inconsistent answers can occur for a number of reasons, including that people react differently under test circumstances.

Further, Item 7(a) of Schedule 8 of the Labour Relations Act requires an employer to prove, on a balance of probabilities, that the employee was actually involved in or guilty of misconduct. The employer is supposed to conduct a proper investigation of the alleged misconduct so that the employer can present proper evidence that links the employee to the alleged misconduct.

Therefore, if a polygraph result is supported by other probable evidence, it is generally accepted as evidence by the CCMA and bargaining councils, says Van Rooyen. He adds that, in this regard, a large number of decisions have been handed down by the CCMA and the Labour Court, where poly- graph results have been accepted into evidence. However, he adds that there have been instances where the presiding Commissioner has refused to allow polygraph evidence to be accepted. This may be regarded as irregular, and could be considered as grounds for review.

Van Rooyen adds that it could be argued that using a polygraph in a working environment is a drastic measure to deal with disciplinary issues. However, if used correctly, the validity and reliability of the polygraph technique could be in excess of 96%.

July explains that polygraph testing cannot under any circumstances lead to the dismissal of an employee. An employee that is dismissed on grounds of polygraph testing, or for refusing to submit to one, has recourse against the employer. He adds that there has to be a hearing with evidence tendered and that evidence has to be challenged for a dismissal to be considered fair in terms of labour law.

Van Rooyen agrees that the unnecessary use of the polygraph reduces its effectiveness and that, in labour issues, it should never be elevated to the position of a sole determinant. He adds that it is always advisable to use the services of a reputable investigator and labour consultant.