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Article 23/2021

Labour Edge

Under what circumstances is an employee obliged to disclose facts during the recruitment process surrounding the termination of his or her employment with his or her previous employer and when will the failure to do so constitute serious misconduct?

In Intercape Ferreira Mainliner (Pty) Ltd v McWade and Others (2019) 30 SALLR 148 (LC), the following approach was recently adopted by the labour court:

  1. the nature and extent of the obligation to disclose facts during the recruitment process were defined by the labour court, in Galesitoe v CCMA and Others [2017] 7 BLLR 690 (LC), where the court said the following, at paragraph 11 of the judgment:

‘Accordingly, it is not unreasonable to ensure that a person applying for the senior level of post in question would have realised that the nature of his relationship with his former employer was a material consideration for his prospective new employer and could affect his employment prospects. That would have given rise to the obligation to disclose having regard to the principle enunciated in ABSA v Fouche [2003 (1) SA 176 (SCA] which the labour appeal court and the LC followed in the Fipaza case’;

    1. what escaped the arbitrator in the present instance was that the applicant’s case was not that the employee had made a material misrepresentation of fact or that he had given false information during the course of the interview process. The applicant’s case before the arbitrator was that, given the circumstances, the employee ought properly, in response to the question regarding the termination of his employment with Cargo Carriers, to have disclosed the facts surrounding the termination of his employment with Cargo Carriers, and that his failure to make that disclosure constituted a serious act of misconduct. Of course, the failure to make disclosure must be material, at least in the sense that the prospective employer would have conducted its own enquiry into the relevant events and determined eligibility or suitability for employment as a consequence.
    2. in these circumstances, and particularly given the fact that the employee was being interviewed for the post (in effect) of CEO designate of a family business, whose operations extend to Zimbabwe, the employee committed an act of serious misconduct by failing to disclose the circumstances of his parting of the ways with Cargo Carriers. It was not sufficient to say that the settlement agreement had the consequence that the employee had had no contractual duty to disclose the circumstances surrounding the termination of his employment with Cargo Carriers, since he had voluntarily resigned and had never been found guilty of any misconduct;
    3. in essence, the employee’s case was that he had had nothing to disclose, and that it had never been proven that anything he did disclose was false. The labour court had some difficulty with this approach, based as it was on the contractual principles of non-disclosure and misrepresentation by silence or omission. This was not a contractual dispute – the issue in the present instance was ultimately one of ethics; and
    4. for this reason, cases such as Absa Bank Ltd v Fouche 2003 (1) SA 176 (SCA), (which concerned the relationship of a banker and client) are useful to the extent that they fix the test for the lawfulness of a non-contractual non-disclosure as one premised on what ‘would be mutually recognised by honest men in the circumstances’. As Lagrange J put it in Galesitoe v CCMA and Others [2017] 7 BLLR 690 (LC), it is not unreasonable to infer that a person applying for a senior position should realise that the nature of his or her relationship with a former employer is a material consideration for a prospective new employer and could affect his or her employment prospects.

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?