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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?