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Article 2/2024

LabourEdge

What is the extent of the duty of an applicant during an interview to make disclosure to his/her prospective employer as to the basis upon which his/her employment with the previous employer was terminated?

And, even more importantly, what happens if an employee failed to disclose relevant information during a job application and interview process and, on the basis of that, an employment contract came into existence?

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  • It is well-established that, when a person applies for a job, there is a duty on him/her to disclose previous circumstances under which their employment with a prior employer had been terminated if such circumstances are material/relevant to a prospective employer’s decision whether to employ or not (Ndudane v Premier of the Eastern Cape (2002) 33 SALLR 6 (ECB).
  • Obviously, it is a factual dispute whether or not such background information was disclosed.  In motion proceedings, such a factual dispute is to be resolved, within the context of awarding the relief, by applying the test formulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), and applied, inter alia, in Thebe Ya Bophelo Healthcare Administrators v Natal Bargaining Council for the Road Freight Industry 2009 (3) SA 187 (W).  On the other hand, in trial proceedings, such factual dispute is to be resolved in terms of the test formulated in Stellenbosch Farmers’ Winery Group Ltd and Others v Martell & Cie and Others 2003 (1) SA 11 (SCA), so applied, inter alia, in Assmang Ltd v CCMA and Others (2015) 26 SALLR 98 (CC).

In the public sector

In the public sector, the employer’s options, when such non-disclosure took place which was material to whether or not the employee was employed, are to:

  • apply to the labour court to set aside the contract
  • apply to the labour court to review the decision to appoint the employee
  • institute misconduct proceedings

If the employer is in the private sector

Should the employer operate in the private sector and employed an employee on the basis of such non-disclosure during the job application interview process, the employer has the following options available to it:

  • apply to the labour court in terms of s77(3) of the BCEA for the contract to be declared null and void
  • institute misconduct proceedings against the employee
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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Where do delictual claims fit into dispute resolution options applicable to employment disputes?