An employee’s failure to disclose essential information regarding their employment history during a job interview may not always constitute a dismissible offence.

In Fipaza v Eskom Holdings Limited & Others (2010) 31 ILJ 2903, the Labour court set aside an arbitration award that held that an employee’s failure to volunteer information to her prospective employer was an act of fraudulent non-disclosure, and found her dismissal to be substantively unfair.

Fipaza was previously dismissed by the employer for alleged misconduct.  Some 18 months later, she applied for another post within the same parastatal and during the selection process, failed to disclose her previous dismissal.

The employer was of the view that Fipaza had a duty to disclose the reason why it had previously dismissed her and that she had failed to comply with that duty.  The employer subsequently dismissed Fipaza for this non-disclosure.

Fipaza challenged the fairness of her subsequent dismissal on the basis that she had assumed that her initial dismissal was common knowledge between the parties and that when the offer of employment was made to her, it was made despite the employer’s knowledge of how her previous employment ended.

The court relied on the principle  that there is no general duty on a contracting party to tell the other party anything that is within their knowledge that may be material and that where conduct takes the form of an omission, such conduct is prima facie lawful.

However, in Galesitoe v Commission for Conciliation, Mediation and Arbitration (2017) 7 BLLR 690 (LC) Galesitoe failed to disclose that he was a party to an ongoing litigious dispute involving his former employer that happened to be a potential client of the prospective employer.

The employer argued that it was brought to the attention of Galesitoe during his interview that his previous employer was a potential business target and that Galesitoe’s relationship with his previous employer would prove to be advantageous.  Galesitoe was appointed but was subsequently dismissed for misrepresenting his ability to attend to his employment obligations given the ongoing litigation between himself and his previous employer.

Galesitoe argued that the litigation with his previous employer was in the public domain and that he therefore did not have to disclose it during his interview.

The Labour Court agreed with the arbitrator’s reasoning that Galesitoe’s relationship with his previous employer was a material consideration for the prospective employer and that the employer was under no obligation to investigate what litigation a job applicant is engaged in except when the employee’s personnel records reflect that information.  The review application was accordingly dismissed.

Prospective employers need to be alive to the distinction that exists between an employee committing an act of dishonesty by failing to disclose certain information during the interview process and the failure to disclose information when they were not specifically required to divulge the information.  Employers can avoid this potential pitfall by asking for all the relevant information which they consider to be material to the job applicant’s potential appointment.

This article was written by Peal Mathonsi, Candidate Attorney, Norton Rose Fulbright South Africa Inc