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:
- 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’;
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- 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.
- 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;
- 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
- 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.
