Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

One of life's villains: being dismissed/ retrenched

It’s a nasty feeling, especially if you have reason to believe that the dismissal was unfair. Did you know that about 100 000 cases were referred to the CCMA last year? Legal Hero saves the day by arranging CCMA/ Labour court representation for its policyholders (no excess fees when claiming).

Free tips:

• An unfair dismissal must be referred to the CCMA within 30 days.
• The CCMA procedure entails two 'hearings:'

a)      Conciliation (where no legal representation is allowed and the presiding officer only makes suggestions);

b)      Arbitration (legal representation is allowed and the arbitrator makes a binding order).

• For a dismissal to be fair, it must be both substantively and procedurally fair. Substantive fairness means that a valid reason was proved by your boss (misconduct, incapacity or operational requirements). Procedural fairness means that a fair procedure was followed (warnings, disciplinary hearing, etc.).
• At a disciplinary hearing, the employee has the right to:

a)      Be present (the employee needs to provide the employer with a reasonable excuse for postponement);

b)      Bring his/her own witnesses;

c)       Request an interpreter;

d)      Not have the person with whom there is conflict chair the hearing;

e)      Question and cross-examine the witnesses relied on by the employer;

f)       Make reference to mitigating factors (first offence, apology, only breadwinner, years of loyal service to the employer, etc.).

• If you have been retrenched, you may visit the CCMA for conciliation (no binding order) but the matter may proceed to the Labour Court for a binding order.
• A dismissal is automatically unfair if it is due to discrimination on race, sex, religion, etc. Similar to retrenchments, one may approach the CCMA BUT for a binding order the matter must proceed to the Labour Court.
• Unlawful deductions from your salary by your employer OR outstanding salaries must be referred to the Department of Labour in your area (and not the CCMA). 

Knowledge is power. 

Legal Hero

www.legalhero.co.za 

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.