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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
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?