BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
At this time of year recruitment of new employees is at its peak. Too many employers are failing to double check that the qualifications submitted by job candidates are genuine. Common law entitles employers to know all facts about a prospective employee that are relevant to a job application. That is, the employee is obliged to:
- Divulge information relevant to the decision to appoint where it is clear that the employer requires such information
- Answer certain questions truthfully
- 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 vs Neil Muller Constructions (2002, 1 BALR 113) the employee was fired for having failed to inform the employer that he had been given ill health 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 the case of SACCAWU obo Waterson vs JDG Trading (Pty) Ltd (1999, 3 BALR 353) 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.
However, employers need to view this finding with caution as it was made many 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 then 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 vs Delta Motor Corporation (1998, 5 BALR 573) 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 blatant lie told during the job application process 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 the case of Hoch vs Mustek Electronics (Pty) Ltd (1999, 12 BLLR 1287) the employee was dismissed for having misrepresented her qualifications. The Labour Court ruled her dismissal to be fair because her 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 employee must be given an opportunity to respond to such allegations. In Fraser vs Caxton Publishers (2005, 3 BALR 323) the employee was dismissed for embellishing her curriculum vitae. The arbitrator agreed that this misconduct merited dismissal. However, the employee had not been given a chance to respond to the employer’s allegations. The arbitrator therefore ordered the employer to pay the employee compensation.
The above case law suggests that employers are allowed to take strong action against employees who were not entirely honest during the employment selection process. However, this principle only applies where the employer can prove that the employee had dishonestly hidden facts relevant to the inherent requirements of the job. Such proof should 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.
To observe our experts debating hot labour law topics please click the Labour Law Debate item in the menu at Labour Law Management Consulting.
