14/06/2017
Can an applicant for employment
who failed to disclose certain
information, or provided false information, to
a prospective employer during the selection
process be dismissed
By: P.A.K. le Roux
This contribution deals with one particular
scenario in this regard - when is a job applicant
under a duty to disclose information to a
prospective employer in the situation where
the employer has not posed a question or
questions aimed at eliciting the information?
The leading cases in this regard are those of
the Labour Court and the Labour Appeal
Court in Fipaza v Eskom Holdings Ltd and
others (2010) 31 ILJ 2903 (LC) and Fipaza v
Eskom Holdings Ltd and others (2013) 34 ILJ
549 (LAC). Ms Fipaza had been dismissed by
Eskom for failing to report for duty after being
granted leave to study in the U.K.
Some 18 months later she applied for a job
with Eskom and was appointed. However,
shortly after she commenced employment
she was dismissed. The reason for the dismissal
was that she had failed to inform
Eskom during the selection process that she
had previously been dismissed by it. She
challenged the fairness of her dismissal. The
CCMA commissioner found that her dismissal
had been substantively fair but awarded
her compensation based on a finding that the
dismissal had been procedurally unfair.
On review the Labour Court overturned this
decision and found that the dismissal had
been substantively unfair. The Court found
that Fipaza had not been under a legal obligation
to disclose her dismissal. In coming to
this conclusion it relied on the following excerpt
from the decision of the Supreme Court
of Appeal in ABSA Bank Ltd v Fouche 2003
1 SA 176 (SCA)
‘The policy considerations appertaining
to the unlawfulness of a failure to speak in
a contractual context – a non-disclosure –
have been synthesised into a general test
for liability. The test takes account of the
fact that it is not the norm that one contracting
party need tell the other all he
knows about anything that may be material
(Speight v Glass and Another 1961 (1)
SA 778 (D) at 781H-783B). That accords
with the general rule that where conduct
takes the form of an omission, such conduct
is prima facie lawful (BOE Bank Ltd
v Ries 2002 (2) SA 39 (SCA) at 46G-H). A
party is expected to speak when the information
he has to impart falls within his
exclusive knowledge (so that in a practical
business sense the other party has him
as his only source) and the information,
moreover, is such that the right to have it
communicated to him ‘would be mutually
recognised by honest men in the circumstances’
(Pretorius and Another v Natal
South Sea Investment Trust Ltd (under Judicial
Management) 1965 3 SA 410 (W) at
418E-F).”
The Court also found that the fact that she
had been dismissed was not within her exclusive
knowledge. Although the interview panel
may not have known about her dismissal
they had been in a position to ascertain the
circumstances in which Fipaza’s employment
had been terminated.This decision was upheld
by the LAC which also referred with approval
to the ABSA Bank decision.
The same principles were applied in the recent
decision in Galesitoe v Commission for
Conciliation, Mediation and Arbitration and
others (JR1401/14 31/1/2017). The employee
in this case, a Mr Galesitoe, had been employed
by the Public Investment Corporation
(PIC). He was then employed by Deloittes
Consulting (Deloittes) but was dismissed on
the ground that he had failed to disclose to
Deloittes, during the selection process, that
he was involved in litigation against the PIC.
The relevance of this failure, according to
Deloittes, was the fact that he had been employed
so that he could assist Deloittes to
gain business in the public sector, including
the PIC. His previous employment with the
PIC was seen to be an advantage in this regard.
The fact that he was litigating against
the PIC would obviate this advantage.
A CCMA commissioner found that the dismissal
was fair. The following points are relevant
in this regard –
- She accepted that Galesitoe had known
that his previous employment with the
PIC was regarded as an asset and that he
ought to have disclosed the litigation to
Deloittes.
- She distinguish the Eskom decision from
the case before her on the basis that
Eskom had knowledge of the fact that
Fipaza had been dismissed. She rejected
the argument that Deloittes could have
obtained knowledge of the litigation by
doing pre-employment checks. In any
event, Galesitoe had been litigating
against the PIC under a name different to
that he utilised in his employment application.
- The fact that one member of the selection
panel, a Mr Tabane, had knowledge
of the litigation was irrelevant because
he did not work for Deloittes Consulting
but another company associated with
Deloittes Consulting.
Galesitoe then took the award on review. At
the commencement of the judgment the Labour
Court stated that the crux of the review
application was whether the commissioner
had applied the test formulated in the Fipaza
decisions correctly. It came to the conclusion
that the commissioner had done so and
upheld the findings of the commissioner.
The application to review was dismissed.
The Court stated that –
‘[11] … it was not unreasonable to infer
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
Bank Ltd v Fouche which the LAC
and the LC followed in the Fipaza case.’
During the course of the decision the Court
also made the following points –
- It rejected the argument that, as a matter
of public policy, Galesitoe was not
obliged to disclose his litigation because
section 5 of the LRA prohibits the prejudicing
of an applicant for employment
on account of him exercising any right
conferred by the LRA, including litigating
against his former employer. In this
case Galesitoe was litigating to recover
monies he alleged were owed to him because
he had been a member of various
boards of companies owned by the PIC.
This was not litigation relating to the exercise
of any rights that he may have had
as an employee in terms of the LRA.
- It also rejected the argument that an employer
has a duty to investigate what litigation,
if any, a job applicant may be involved
in. It would be perverse if a prospective
employee could, in effect say –
‘ …I am entitled to assume that you
have done diligent research into my
history of litigation with my previous
employers, to the extent it may be relevant
to my engagement, and consequently
I do not need to mention the
fact that I have a significant claim
against my last employer with whom
you seem to be expecting I will assist
you to engage with in a fruitful business
relationship if I am employed.’