POLYGRAPH TESTING IN LABOUR MATTERS
FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt River (2010) decision in the labour court has ruled that “polygraph testing although frequently used in context of workplace discipline, is by no means uncontroversial.
Polygraph results on its own can never be conclusive proof of guilt by an employee. At best the results on its own could be used as part of the investigation process to determine whether or not a further investigation into the conduct of a particular individual is warranted.
In order to comply with the test of fairness, the labour court held that the assessment would need to be: (i) shown to be scientifically valid and reliable (ii) shown to be capable of being fairly applied (iii) shown to not be biased against any employee or group.
Accordingly a polygraph test on its own cannot be used to determine guilt of an employee and therefore a justification for dismissal, and may only be used in support of other substantive evidence of guilt of an employee.
Lastly, with regard to the above it is trite law that an employee cannot be forced to take a polygraph test, and he/she must consent thereto in writing and must be informed that: (i) the examinations are voluntary (ii) only questions discussed prior to the examination will be used (iii) employee has the right to have an interpreter or another person present.
Aarninkhof Attorneys have extensive experience in the field of labour law and are available to assist in all your labour related matters.
