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Ivan Israelstam
Common law entitles employers to know all facts about a prospective employee that are relevant to a job application. This means the employee is obliged to divulge information relevant to: the decision to appoint where it is clear that the employer requires such information; to answer certain questions truthfully; and to desist from exaggerating job qualifications.
Divulging relevant information
For example, where an employee applies for the job of a driver he/she would be required to divulge that he/she does not have a driver's licence. However, where the information withheld is not relevant to job suitability, it would be dangerous for the employer to act against the employee.
For example, in Sylvester v Neil Muller Constructions the employee was fired for having failed to inform the employer that he had been declared medically unfit and was granted retirement by a previous employer. The CCMA found the dismissal to be unfair because the withholding of the information did not prejudice the employer.
On the other hand, in Saccawu obo Waterson v JDG Trading (Pty) Ltd the arbitrator found that the employee was obliged to divulge to the prospective employer that he had a previous conviction for armed robbery and theft.
However, he was only obliged to make this disclosure because the job he had applied for was that of bookkeeper. The job required the handling of money and the disclosure would have alerted the employer that he was not suited to the job.
But take note, employers need to view this finding with caution as it was made six years ago. Should such a case now be brought to the constitutional court it could be decided that the employee's past record was his own business, that he had paid for his past deeds and that his record should not be held against him.
Answering questions truthfully
Generally, job applicants are required to answer relevant questions truthfully during the screening process. However, what is relevant is a matter for debate. For example, a job applicant may well be able to claim that she was not obliged to answer truthfully a question as to whether she was pregnant, because this has nothing to do with her ability to do the work.
He employer might then argue that the maternity leave would interrupt the continuity of the job. However, the employer would need to prove that the job required continuity and that no alternative interim measure could be implemented to solve the continuity problem.
It is not enough for the employer to prove the employee guilty of misrepresentation. The employer must prove that honesty is an essential requirement. In Numsa obo Engelbrecht v Delta Motor Corporation the employee had failed to disclose that he had been fired for theft by his previous employer.
He had lied during his job interview by saying that he had resigned from the previous employer. Delta Motor Corporation then fired the employee for misrepresentation. Despite the lie told during the job application, the CCMA found that the dismissal was unfair and ordered the employer to reinstate the employee. This was because the employer had condoned a similar lie told by another employee.
Exaggerating job qualifications
In Hoch v Mustek Electronics (Pty) Ltd, the employee was dismissed for having misrepresented her qualifications. The Labour Court ruled her dismissal fair because dishonesty had destroyed the trust relationship. Employers are warned, however, that it is insufficient merely to allege that the employee has lied or exaggerated. The employer must be able to prove this allegation.
In Netu obo Van Dyk v Amcoal Colliery and Industrial Operations, the employee was dismissed for lying about his qualifications as an artisan. However, the employer was unable to prove Van Dyk had lied. The arbitrator therefore ordered reinstatement with full back pay.
The above case law suggests that employers are allowed to take strong action against employees who were not honest during the employment selection process but the principle only applies where the employer can prove that the employee had hidden facts relevant to the inherent requirements of the job.
Such proof must be brought to a disciplinary hearing chaired by an impartial chairperson who is fully competent to gather and process the evidence and arrive at a finding that will stand up in court.
- Our thanks to Ivan Israelstam and The Star newspaper for permission to publish this article.
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