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Thread: Polygraphs Test

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    Polygraphs Test

    Good day.

    I am sure the above topic might have been touched at one stage,but this will help me or other new people in the forum.My question is,can an employer dismiss an employee that has failed a lie detector test.What is the worst case scenario to be expected.A friend of mine was saying,the employer might ask the employee to resign from his or her,but what if the employee refuses to resign.Will the employer retrench the employee for refusing to resign-what happens after.Can the employee take the employer to labour court on grounds that s/he was retrenched for failing the lie detector test after refusing to resign from the post

    Thanks for your advice and input.

    Regards

    N

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    Diamond Member adrianh's Avatar
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    I don't believe that such a test would stand up in court. What qualifies a person to administer such a test?
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    Hi

    Think we possibly need the background to this as suspect there is more to this story. Why is the lie detector test being administered? If all staff are being tested probably wouldn't be reason for dismissal but if something has happened and is part of a disciplinary a failure may add to the possibility of guilt. You can not ask staff to resign or retrench on the basis of a lie detector test. Dismissals/ retrenchements need to follow procedures.

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    Silver Member Greig Whitton's Avatar
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    Dismissing an employee for failing a polygraph test is far from straightforward. Consider the following extract from a case that the Labour Appeal Court heard a few years ago:

    "‘It is trite that polygraph evidence, when coupled with other circumstantial evidence, can be sufficient to discharge the onus in labour disputes. (This is supported by numerous cases, such as SACCAWU obo Chauke v Mass Discounters (2004) 13 CCMA 21.3.1 and MEWUSA obo Mbonamni v S Bruce cc (2005) 14 MEIBC). In both these cases there was additional circumstantial evidence that led the commissioner to conclude that the applicants were dishonest as lying about their whereabouts.

    Circumstantial evidence has been defined as ‘indirect evidence which creates an inference from which a main fact can be inferred’. Van der Merwe in Principles of Evidence (sic) stated that it often formed an important component of cases at the CCMA. It required the commissioner to draw an inference from the set of circumstances but it had to be the most probable inference that could be drawn and must amount to more than a reasonable suspicion of wrongdoing."

    The key takeaway here is that an employee who has been dismissed for failing a polygraph test can dispute their dismissal for several reasons:

    1. Was the testing applied fairly? (e.g. were other employees tested or was a specific employee singled out)

    2. Was the testing administered competently and correctly?

    3. Is there sufficient evidence other than the failed test?

    4. Do the findings of the polygraph test support the rest of the evidence?

    5. Given all of the evidence, is wrongdoing on the part of the dismissed employee the most probable conclusion?

    6. Assuming that it is reasonable to conclude that the employee was guilty of wrongdoing, was dismissal a fair and appropriate sanction?

    7. Assuming dismissal was a fair and appropriate sanction, were correct dismissal procedures followed?

    The worst case scenario is that the CCMA or Labour Court rules that the dismissal was unfair and orders the reinstatement of the employee and/or compensation (typically several months' remuneration).

    Bottom line: while you can dismiss an employee for failing a polygraph test ...

    (a) The test needs to be applied fairly and administered competently;
    (b) There needs to be additional evidence;
    (c) The wrongdoing of the employee needs to be the most probable conclusion;
    (d) Dismissal needs to be a fair sanction given the circumstances; and
    (e) The decision to dismiss must follow fair procedures.

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    adrianh (02-Mar-16), bones (01-Mar-16), flaker (02-Mar-16)

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    Diamond Member HR Solutions's Avatar
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    The simple fact is if you mention a polygraph test to staff .... you will more than likely get different responses .... which tells a story before it is even done.
    Unfortunately as Greg above always states the law and how difficult the processes are ....... don't let this put you off ..... follow your gut. There are ways and means of getting rid of staff ...... legally ...... just not always written about.
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    Diamond Member Justloadit's Avatar
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    There is another issue with polygraph tests. You have to give a 24 hour warning of when you intend doing the test, and you can not simply send one person for the test, as this then constitutes victimization on the one hand, and constructive intent on the other.
    The person going under the test, then has 24 hours to find a way round it. They usually visit the local sangoma, who then gives them muti to make the responses erratic.

    I had am incident recently in which I knew who the culprit was, and thought the polygraph would have resolved the issue. When I contacted a local company to do the process, the investigating officer recommended that I do not do the polygraph test, namely because of the issue described above.

    He suggested an alternative method, which he developed, and recons that he gets a 99% success rate in which the culprit confesses, relieving you of the difficult process of building up the case. He calls it the SCAN method, acronym for Scientific Content ANalysis.

    This technique allows the forensic examiner to obtain uncluttered statement from a subject under investigation before any information about the investigation is communicated with him/her, which is analysed later using peer review scientific methodology where the analyser looks for linguistic flags of deception.

    Again you have to inform all staff that they will take part in the process, and all staff must be assessed, in order to show that the process is fair and not fall under the victimization process.
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    Dear All

    Thanks for your replies.Polygraph test was conducted to all employees of which a majority failed.The issue now is,the employer has asked one of the employees to redo the test as it looks like s/he has a personal agenda to score with the employee.The reason why l say this is-the first polygraph test that all employees took,the questions asked to this employee being targeted were not objective,had nothing to do with the context of the investigation.Questions had to do with the employee's skeletons-everyone coming out of the poly graph test room was asked about the targeted employee,which in my opinion,this polygraph is now personal rather than being objective.Obviously everyone has skeletons in his cupboard,but for them to be used in the polygraph test against the targeted employee,l think it's unfair as they(it)will affect the outcome of the whole test as the employee will deny the skeletons.In nutshell,on the first polygraph test,the employer tricked the employee with irrelevant questions

    What are this employee's options?.Can s/he refuse to take the second test?.The employer is convinced that the employee committed the offense of the first investigation,though there is no proof.

    Will appreciate your advice

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    Diamond Member HR Solutions's Avatar
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    Sounds like the company is cocking this one up .......
    The fact that you say the "majority" failed , but you were suspecting one "employee" at the beginning is perhaps an indication that something serious is wrong .... either with the polygraph test or something else !!! How on earth can you expect to do two polygraph tests on people ? Which one are you actually going to believe ?
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    We have had an employee tested before and the result came back neutral.The employee had to go for a second test,which he then failed outright.So it does happen.

    Polygraphs are generally used in conjuction with other evidence.

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