This article was written by Shenaaz Munga, a Candidate Attorney at Norton Rose Fulbright South Africa
The non-disclosure of a close personal relationship with someone being interviewed for employment results in a conflict of interest between an employee and an employer and is a dismissible offence.
In Coega Development Corporation (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 923 (LC), the Labour Court found that a senior employee was under an obligation to make full disclosure of her close personal relationship with two applicants for employment before the selection occurred. She was required to recuse herself from the selection process. Her failure to do so, placed her in conflict with her employer’s interests.
The employee in question was the unit head of Safety, Health, Environment and Quality operation. She was a senior manager earning around R 1 million per annum and had approximately 20 subordinates reporting to her.
The employee assisted in the appointment of two applicants, namely Coetzer and Ebrahim. These appointments were tainted by her personal relationship with Tony Corleoni who was the cousin and brother of Coetzer and Ebrahim respectively. She assisted both candidates by making the relevant enquiries with Human Resources and by sitting as a panellist during their interviews.
After being charged with conflict of interest amounting to gross misconduct, the employee was dismissed. The Commission for Conciliation, Mediation and Arbitration found that her dismissal was substantively unfair because she was not guilty of misconduct.
On review, the court found that the employee’s actions amounted to serious misconduct. Accordingly, the dismissal was found both procedurally and substantively fair for the following reasons:
- Employees are under an obligation to make a full and frank disclosure of any personal dealings with applicants for employment;
- The failure to make such a disclosure places the employee in a conflict of interest with the employer;
- A personal connection with an applicant results in a favourable enhancement of the employment application;
- Treating job applicants with favouritism amounts to serious misconduct; and
- The sanction of dismissal is warranted in cases of conflict of interest which amounts to serious misconduct.
The Labour Court said the following:
“It amounts to nepotism and corruption to become involved in the recruitment process of people to whom you feel favourable, in circumstances where you do not make full disclosure.”
Conflicts of interest and nepotism can be avoided when employees remain impartial in all dealings with the appointment of applicants for employment. Therefore, both employers and employees should be vigilant regarding such practices and the sanctions warranted in the circumstances.